B. Elective Share
1. Current Law: The elective share statutes ensure that the surviving spouse
has the right to receive a minimum amount of assets upon the death of the decedent.
Simplistically stated, the elective share is an amount equal to 30% of the aggregate value of all
the decedent’s assets at the time of death. The elective share is paid outright to the surviving
spouse and is awarded only to the extent the value of all other assets that pass from the decedent
to the surviving spouse, either by reason of survivorship or through the decedent’s testamentary
plan, do not rise to the requisite 30% level. The elective share is a floor amount. The elective
share is not automatic, rather the surviving spouse is required to make an election within a set
period of time. The court may award attorneys and costs against a surviving spouse if an
election is made or pursued in bad faith.
2. Reason for Legislation: The RPPTL Section convened an ad hoc
committee to study the elective share. The committee identified the following areas of concern:
a. Elective Share Percentage: The length of the marriage is not a
factor in determining the surviving spouse’s entitlement. Thus, a spouse married to the decedent
for 1 year is entitled to receive the same amount as a spouse who was married to the decedent for
40 years.
b. Treatment of Homestead Property: The manner in which the
protected homestead is included in the elective estate and how it is valued for purposes of
satisfying the elective share creates an inequity. If the property is held by the spouses as tenants
by the entirety, it is not protected homestead and one-half of the value of the home is included in
determining the elective share and in satisfying the elective share. If however the homestead is
titled solely in the name of the decedent, it is protected homestead and it not taken into
consideration for the purpose of calculating the elective share or satisfying the elective share.
