You Can’t Cut Him Out!

Many divorcing spouses do not want a former partner to receive one penny more than absolutely necessary. But even when one spouse rewrites his or her will, the other partner cannot be completely disinherited until after the divorce is final.

Each spouse, even when planning a divorce, retains the right to inherit a percentage of his or her partner’s estate – the elective share, as it is called.  It describes a proportion of an estate that the surviving spouse of the deceased may claim in place of what they were bequeathed in the decedent’s will. It may also be called a widow’s share, statutory share, election against the will, or forced share.

In New York, for example, a spouse’s elective share is one third of the net estate if the couple has children and one half if they do not. The net estate is the amount left for distribution after paying all bills, debts and expenses.

The elective share is the modern equivalent of the English common law concepts of dower and curtesy, both of which reserved certain portions of a decedent’s estate that were reserved for the surviving spouse to prevent them from falling into poverty and becoming a burden on the community.

After the decree is final, both spouses can disinherit each other.

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