As a general rule, a married couple owns marital assets jointly in that these assets pass to the surviving spouse upon the death of the other spouse. For example, ownership of a marital home owned in joint tenancy upon the death of one spouse will automatically pass to the surviving spouse. However, assets that are not owned in joint tenancy or are considered marital property can be distributed to whomever the testator designates in his or her will. In this case, an asset owned exclusively by one party or was brought into the marriage and not considered marital property may, as part of a will’s distribution plan, be passed to anyone the testator designates which may not be his spouse. The only way that a spouse can obtain ownership and override this type of distribution of the estate occurs if the law allows a “right of election” against the will. In other words, the right of election is a right of a surviving spouse to contest and potentially overrule how the assets of a deceased spouse are distributed.
Right to receive an elective share
When asserting a right of election a spouse is asserting that he or she is entitled to receive an elective share, or a share of the deceased spouse’s estate, in a portion determined by law, instead of accepting the portion provided for the spouse in the decedent’s will. In the event a spouse attempts to overrule a will a probate court will decide whether a spouse may overrule an existing will to prevent from being disinherited and to assert an elective share. The elective share is determined under state law and varies from state to state.
Challenge to overrule terms of a will
In other cases, a spouse may also assert what is considered a will challenge. Under these circumstances, a surviving spouse may choose to contest how the will distributes estate assets. In the event of a will challenge a spouse may present a will challenge to overrule the terms of a will or to challenge how the will is being administered or to contest the enforcement of debt obligations against the estate. A will contest involves a party presenting a claim to the probate court that the terms of the will are improper under the law or that the will should be administered differently or that a claim against an estate should be denied.
Although courts try to honor the testator’s intent in the will, certain state laws contain provisions which allow a spouse to press a claim for an equitable share of a deceased spouse’s estate. The conditions which this may occur depend largely on the jurisdiction, the overall estate plan and the language contained in the will.
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