Navigate the Complex World of Spousal Entitlement at Death - Elective Share and Related Testamentary Restrictions

Sep 16, 2026

Estate planning at death is shaped by state restrictions on testamentary freedom, especially regarding disinheritance of a surviving spouse and, in some jurisdictions, surviving children. The article explains how elective share laws let a spouse elect a portion of the decedent’s estate despite will terms, and it contrasts these rules with intestacy default provisions. It also reviews support-based entitlements such as homestead and family exemptions, community property limits, and dower/courtesy history, with practical planning considerations and cross-state awareness for practitioners.

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Common spousal-entitlement considerations

Elective shares

Amounts for support—homestead and family exemptions

Community property

Dower and courtesy

Reasons for protecting (or restricting) the surviving spouse’s share

Why practitioners should be aware of other states’ elective share laws

Navigate the Complex World of Spousal Entitlement s at Death Elective share and similar laws restrict testamentary planning , but strategies can be implemented to limit their impact. SUZANNE TUCKER PLYBON, MICHAEL L. VAN CISE, AND TYSON WILLIS I ndividuals in the U. S. generally have significant freedom at death in how they dispose of their property, whether probate or nonpro- bate. However, every state imposes some restrictions on the freedom to dispose of assets at death, especially with regard to the ability to disinherit a surviving spouse (and in some cases, surviving children) . These restrictions on testamentary freedom operate differently from the laws of intestate succession. Intestacy laws are only default rules that determine who receives property in the absence of a will, whereas the restrictions discussed in this article can override a will or other estate planning documents. Common concerns Several common spousal-entitlement considerations are described below. Elective shares. In the U.S., the vast majority of states, as well as the District of Columbia, provide that a surviving spouse can elect to take a por- tion of a decedent’s estate, regardless of the provisions of the will (and in some cases other documents, such as revocable trusts or beneficiary designations). Elective share laws generally provide for only the spouse, and not for children.1 Elective share statutes vary widely and along many dimensions and must be examined carefully state by state. Foreign countries also frequently have complex elective or forced share rules, which may or may not resemble the statutes in the U.S. This article will focus primarily on planning around U. S. elective share laws, although many of the planning points discussed may also apply to other forms of testamentary restrictions. Amounts for support—homestead and family exemptions. Several jurisdictions provide a sur- SUZANNE TUCKER PLYBON , MICHAEL L. VAN CISE , and TYSON WILLIS are attorneys atArnall Golden Gregory LLP in Atlanta , Georgia . Copyright © 2019 , Suzanne Tucker Ply bon , Michael L. Van Cise , and Tyson Willis. viving spouse , and sometimes minor children , the right to an amount needed to support the protected persons for a period. Frequently, this period is one year, but the period may also be extended to the duration of the administration of the estate in some cases. Similarly, some states provide a surviving spouse or minor children with certain entitlements as “homestead exemptions,” “family exemptions,”or other similar concepts. Depending on the state, these exemptions may relate to dollar amounts, specific categories of property, or both. Community property. With the exception of Georgia,2 every state that does not provide an elective share for a surviving spouse has some form of community property laws.3 Community property laws affect not only the division of property in divorce but also the disposition of property at the death of the first spouse. Community property laws do notrestrict testamentary dispositions 19 specifically. Rather, such laws are alimitation on ownership of property acquired during marriage. Community property laws generally provide that each spouse is a one-half owner in marital property, regardless of formal titling. Thus, a decedent may not have the right to dispose of more than the decedent’s one-half interest in community property, not because the law requires the decedent to leave a portion of the other half to the decedent’s spouse (as would bethe case with an elective share ), but because the decedent does not own the other half. Dower and courtesy. Dower and courtesy are common-law rights providing the surviving spouse with a life estate in a portion (generally one-third) of the decedent spouse’s property.4 Dower and courtesy have been repealed in most states (typically in favor of an elective share ) but still exist in a handful of jurisdictions.5 Many elective share states cont

FAQs

What are elective share laws and how do they affect a surviving spouse’s rights?

In most U.S. states and the District of Columbia, a surviving spouse can elect to take a portion of the decedent’s estate regardless of the will’s terms. The scope is generally spouse-focused rather than child-focused, and the statutes vary and must be examined state by state.

How do homestead and family exemptions function in spousal protection?

Some jurisdictions provide surviving spouses (and sometimes minor children) support-related entitlements for a protected period, often one year. Other states use “homestead” or “family” exemptions that may apply to dollar amounts, specific property categories, or both depending on the state.

How do community property rules limit what a decedent can transfer at death?

Except for Georgia, states without elective share generally impose community property rules that affect ownership rather than directly restricting testamentary dispositions. Each spouse is typically a one-half owner of marital property, so the decedent cannot dispose of more than their one-half interest.

Sep 16, 2026

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