9119 / What is a spouse’s elective share? How can a spouse’s election impact estate planning in a blended family?

Pursuant to state law, a surviving spouse is entitled to claim a portion of his or her deceased spouse’s estate in lieu of the inheritance that the decedent chose to leave for the survivor (whether via will, trust or otherwise). In the traditional family context, this is often not an issue because the first-to-die spouse simply leaves his or her entire estate to the survivor with the understanding that the surviving spouse has sufficient incentive to provide for the couple’s mutual children or other heirs.

In the blended family context, a deceased spouse may choose to leave certain of the assets to children from a prior marriage, with only a specified portion of the estate passing to the surviving spouse. This can create a problem when such a scenario intersects with state elective share rules, which may provide that the surviving spouse is entitled to a greater portion of the estate than the decedent directed. As a result, the elective share rules must be considered when engaging in estate planning for a blended family.

In many cases, blended families will use a qualified terminable interest property (QTIP) trust (see Q 9123 to Q 9124) to ensure that the surviving spouse is satisfied with his or her inheritance while still providing for children from a prior marriage.

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