If a decedent is survived by a spouse but did not leave anything in his revocable trust or Last Will to the spouse, the spouse may have a claim for an elective share or may be considered a pre-empted spouse.
When the deceased was married at the time that he entered into a Last Will or trust, or amended a trust that existed prior to the marriage after the marriage has occurred, the surviving spouse may want to file an elective share claim. There are specific statutory deadlines to file such an election, and it is important for a spouse to timely file the election. An elective share is equal to all non-exempt property, homestead and 30% of the elective estate. The elective estate includes all of the deceased spouse’s assets (probatable and non-probatable) that the deceased spouse had right prior to death, and includes assets that the deceased spouse had but gifted to others one year prior to death. The calculation of the elective estate requires skilled knowledge of the statutes and case law of what comprises the elective estate. Even if a prenuptial or post-nuptial agreement exists, the surviving spouse may have claims that would void the pre or post-nuptial agreement or make it voidable that would allow the surviving spouse to claim an election share.
If the deceased spouse failed to re-write or amend their Last Will or a trust that pre-existed prior to the marriage to the surviving spouse, the surviving spouse may set forth a claim that they are a pre-empted spouse and can receive what they would have received if the deceased spouse had died without a Will or trust.
In either of these cases, effective representation is a necessity to insure that all statutory requirements are being met, and that the value of their claim is calculated correctly.