What is A Spousal Elective Share?

Oklahoma City elder law attorneys provide insight into the issues that matter to seniors. As elder law attorneys, we don’t just help older people–we help people in every age group to plan ahead and make their future, and their family’s future, more secure. One big issue an elder law attorney helps with is assisting with the creation of a last will and testament, and possibly a trust, so you can leave your assets to the people you love and thereby control your legacy. 

While you can leave assets to almost anyone you want, there is one exception. It is very difficult for you to disinherit your spouse. If you want to leave your entire estate to someone other than your surviving spouse, it may not be easy or even possible to do. You might try to write a will that leaves your money to someone else, but your surviving spouse can potentially claim a spousal elective share.

Parman & Easterday can advise you on what a spousal elective share is, how it works, and the options you have for leaving assets to someone other than your spouse when you pass away. Call us today to find out more about the assistance we offer on estate planning and other issues that affect your finances as you age.

What is a Spousal Elective Share?

A spousal elective share gives a spouse a “right of election” to claim ownership of property after a husband or wife passes away. Different states have different rules regarding what a spouse may claim if an effort was made to disinherit him or her. In Oklahoma, the rules that clarify how the spousal elective share works are found in 84 O.S. §44(B)(2).

The statute says, “The spouse of a decedent has a right of election to take the one-half (1/2) interest in the property as provided in paragraph 1 of this subsection in lieu of all devises, legacies and bequests for the benefit of the spouse contained in the last will and testament of the decedent.”

Now that is a mouthful.  Really what this means is that if a husband tries to disinherit his wife (or vice versa) or leaves her only a very small inheritance, the surviving wife can claim her spousal elective share instead of  accepting the disinheritance or the limited assets left to her in the will.

If the husband tried to leave money and property to a friend or a different relative, the surviving spouse could assert her interest against the property the deceased person wanted to go to someone else…regardless of what his will says. This rule exists because the law treats married couples as having jointly contributed their labor during the course of a marriage; thus, disinheriting a spouse through a will generally is not allowed.

If a spouse exercises his rights under the spousal elective share, he will not receive the limit assets bequeathed to him in the will.  Instead he will receive half of the property specified by law in the state of Oklahoma.

Getting Help from Oklahoma City Elder Law Attorneys

There may be many circumstances in which you do not want to leave money to your spouse. Perhaps you want your entire estate to go to a son or daughter from outside of the relationship, rather than leaving it to your spouse. Or you may be estranged from your spouse, but not legally separated or divorced, and may not want your assets to go to your spouse if something happens to you.

Regardless of your reasons, when your spouse has a legal right to exercise this elective share, disinheriting your spouse or giving him only a small portion of your estate is not a straightforward option. You can write a will providing instructions on who you want to inherit instead of your spouse, but your wishes likely will not be respected if your spouse claims his share of the property.

Parman & Easterday can advise you of your available options, depending on your situation, should you decide you want your assets left to someone other than your spouse. Give us a call today at (405) 843-6100 or (913) 385-9400 or contact us online to find out more about how we can help you with your estate plan.