Spouse's Elective Share


March 2018

By Carl A. Glad, Partner, Law Offices of Kurt M. Ahlberg LLC

What happens when your deceased spouse’s Will leaves you only the washing machine?  Don’t laugh.  This actually happened.

Connecticut law provides a protection for a spouse that may have been disinherited by their deceased spouse.  In this situation, the spouse may exercise a right of election to take a statutory share of the estate.  That statutory share can be found in CGS § 45a-436(a).

The statutory share is a life estate of one-third in value of all of the decedent’s real and personal property passing under the Will.  That value is based on the value of the estate at the time of distribution not the value at the date of death.  Most importantly, the value of the spouse’s share is based solely on the portion of the estate passing under the Will.  That means that jointly held properties do not count toward the value and neither do assets within a trust

Even if the Will provides for the surviving spouse, they may still elect to take the statutory share.  That means that if the Will provides the surviving spouse with less than what would be the statutory share, they may elect the share rather than take under the Will.  If the surviving spouse is a Medicaid beneficiary the Connecticut Department of Social Services will require the election if it is greater than their spouse’s Will provides.

The statutory share can be an important estate planning tool as well, especially when you have a spouse in a nursing home.  In that case, a well drafted Will could include only the statutory share to the spouse in the nursing home.  If the community spouse passes, this is an effective way of providing the minimum amount of assets to the spouse, and in effect the nursing home, and transferring all other assets to the remaining family. 

Drafting a Will takes skill and thought.  It is important to consult a qualified attorney when drafting your Will.

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