Can a spouse elect against a will in this state?

This is not a substitute for legal advice. An attorney must be consulted.

ALABAMA

A surviving spouse can take an elective share which is computed as the lesser of the entire decedent's estate reduced by the value of the estate of the surviving spouse, or one-third of the decedent's estate. The election must be filed by the later of six months after death or admission of Will to probate. A surviving spouse is also entitled to a family allowance, homestead allowance and to exempt property. Ala. Code Sec. 43-8-70,73,74. A spouse omitted from a Will can take the spousal intestate share (see separate question) provided the omission was unintentional and the spouse was not otherwise provided for by the decedent outside the Will. Ala. Code Sec. 43-8-90.

ALASKA

In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general, it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property.

The decedent retained the power to consume the transferred property or dispose of it for his own benefit.

Any transfer held at the time of death with another with right of survivorship.

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate, for purposes of determining the intestate share. (Uniform Probate Code se...

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