Why the Spousal Elective Share is a “Secret”
Mrs. Smith, a surviving spouse, is not given anything according to her deceased husband’s Will. She has a right to file for her Elective Share and receive a portion of the estate. But Mrs. Smith does not know she can file for an Elective Share – because like most people – she has never heard of an Elective Share. The clerks at the courthouse do not tell her, the Executor of the estate does not tell her, the attorney for the estate does not tell her. If she doesn’t find out and file for her Elective Share within the legal time limit, she will not get what could have been her Elective Share of the estate. But why is this such a secret, and why doesn’t someone tell her about it?
Here are 5 reasons why the Elective Share seems like a secret:
1. It is a complex law. While the idea of preventing disinheritance of surviving spouses is simple, the details are complex. Reading this law is a lot like reading tax provisions, including lots of definitions, procedures, and formulas. Few people outside of attorneys focusing on estate litigation and administration are familiar with the Elective Share law.
2. It is rarely used. Thank goodness, most people do not disinherit their spouse. Whether unintentionally or on purpose, it doesn’t happen often, and so this law is rarely needed. This means that few people have experience with the Elective Share or have any need to know it exists.
3. Courthouse clerks are not allowed to give legal advice. Only attorneys are allowed to give people legal advice. This makes clerks cautious about what they suggest to people. Also, not all the clerks in the courthouse will be familiar with the Elective Share for reasons 1 and 2.
4. The Executor of the estate either doesn’t know about the Elective Share or doesn’t want the surviving spouse to know. Most Executors are family members, are not attorneys, and have no reason to know about the Elective Share law. Also, in situations of disinheritance, the Executor is often an in-law to the surviving spouse that does not want the spouse to get anything.
5. The attorney representing the estate is not allowed to give advice to the surviving spouse. The attorney for the estate advises the Executor, and would violate their ethical duties by telling the surviving spouse that they may file for an Elective Share.
It is sad to consider that surviving spouses that are disinherited, either on purpose or unintentionally (yes it does happen), are not receiving their fair share of the estate because they do not know they have a right to claim it. If you are a surviving spouse, please consult with an experienced attorney as soon as possible to find out about your rights in the estate of your spouse.