Spousal Election – Opting out of a Will

Spousal Election – What does it mean?

The law allows a surviving husband or wife to choose between what a will provides and what they would have received had a divorce occurred on the day before the death.  The spouse will receive an equalization payment instead of an inheritance.  This option means that you should not receive less assets from an estate than you would have had you divorced the deceased the day before the death.

A spousal election does not prevent the filing of a dependent support claim.

Time limits for spousal elections

This is called a spousal election and it must be filed with the court within 6 months of the death of the deceased.  You do not get more time just because a trustee is moving slowly.

Will or equalization payment – One or the other

If a husband or wife of the deceased elects to receive an equalization payment, it is instead of receiving what was given by a will.  As the election can be difficult to reverse, it is important to choose carefully whether to elect with the advice of a lawyer.

Assets given away before death

If a deceased husband or wife gave away property or money before death to avoid them being included in an estate, the court will sometimes reverse those transfers.