Leaving your spouse out of the will, and the share they can claim anyway

The plan people describe is usually some version of: leave the estate to the children from the first marriage, put everything else in a trust, and let the will say nothing about the current spouse. The first half of that is ordinarily fine. The second half is the part that fails, and it fails in a way that is not obvious from reading the will.

A child can be cut out. A spouse generally cannot.

Readers conflate these two constantly, and the law treats them as opposites. There is no forced share for children in the great majority of American states. A will that names three children and leaves out the fourth, deliberately, is an enforceable will.

What protects children is narrower than people think: a pretermitted heir statute, which assumes an omission was an accident of timing rather than a decision. Minnesota's version is typical. It gives a share only to a child born or adopted after the will was executed, and even then it does not apply if "it appears from the will that the omission was intentional". A child alive on the day the will was signed and left out of it takes nothing.

A spouse is a different creature. The right they hold is not a presumption about intent that careful drafting can rebut. It is an election — a right to set the will aside as to their own entitlement and take a statutory fraction instead — and no amount of clarity in the will defeats it.

Which property system your state uses decides the shape of the answer

Before asking how much, ask which system. The nine community-property states solve this problem at the front end rather than the back end, so they mostly do not need an elective share at all.

California Probate Code § 100 states the mechanism in one line: on death, "one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent". The survivor already owns half of what the couple built. The will can only dispose of the decedent's half, so there is nothing to elect against — the protection sat in the title all along. That is also why a prenuptial agreement in a community-property state does very different work from one in a common-law state.

The other forty-one states run on separate property: whoever earned it owns it, and a marriage of thirty years can leave one spouse holding nothing in their own name. The elective share exists to correct that at death. Its shape varies, and not every state expresses it as a percentage — Georgia gives a surviving spouse and minor children a year's support, property sufficient to maintain them for the twelve months from the date of death, taking priority over most other claims against the estate.

The augmented estate is what defeats the revocable trust

This is the mechanism worth understanding, and it is the reason the standard workaround does not work.

The workaround is to move everything into a revocable living trust during life. Nothing passes under the will, so — the reasoning goes — there is no estate to elect against. In a state that measures the elective share against the probate estate alone, that reasoning is sound. In a state that uses an augmented estate, it is exactly backwards, because the augmented estate was designed to catch it.

Virginia's statute reaches property over which the decedent "alone, immediately before death, held a presently exercisable general power of appointment" — which is precisely what the settlor of a revocable trust holds over its assets. Minnesota's uses the same words. Florida is blunter still and needs no analysis: the elective estate includes property transferred by the decedent "to the extent that at the time of the decedent's death the transfer was revocable by the decedent alone".

Note the last item. Virginia counts property that passed during the marriage and within "the two-year period next preceding the decedent's death" where the gift to any one recipient exceeded the amount excludable under 26 U.S.C. § 2503(b) — the federal annual gift-tax exclusion. Emptying the accounts in the final illness is a recognised move and the statute already anticipates it.

How much: a flat fraction, or a scale that grows with the marriage

There are two designs in circulation and they produce very different answers for a short marriage.

The flat-fraction states apply one number regardless of how long the couple were married. Florida's elective share "is an amount equal to 30 percent of the elective estate". New York gives the greater of $50,000 or one third of the net estate. A widow of eleven months and a widow of forty years take the same proportion.

The Uniform Probate Code rejected that as a windfall at one end and a shortfall at the other, and replaced it with a scale. Minnesota, which uses the earlier UPC formulation, applies a percentage of the augmented estate that starts at 3 per cent for a marriage of one year and steps up to 50 per cent at fifteen years. Virginia uses the 2008 revision, which arrives at the same place by a different route: the share is 50 per cent of the marital-property portion of the augmented estate, and that portion is itself 3 per cent at under a year, 30 per cent at five years, 60 per cent at ten and 100 per cent at fifteen. Half of 3 per cent is 1.5 per cent — so a first-year Virginia widow claims a markedly smaller slice than a first-year Minnesota widow, on identical facts.

The supplemental amount is the floor underneath the scale, and it matters most in the cases that look worst. Where everything the surviving spouse ends up with falls short of $75,000, Minnesota tops it up to that figure regardless of what the percentage produced.

The survivor's own property is in the calculation too

This is the part that surprises people on both sides, and it is why the elective share is rarely the windfall a disinherited spouse hopes for or the catastrophe an estate fears.

The augmented estate includes property owned by the surviving spouse at the decedent's death, and property that would have been counted as their own non-probate transfers to others. Then, when the share is paid, Virginia applies the survivor's own property and everything already passing to them first; only the shortfall comes out of the probate estate and the non-probate recipients.

The consequence is arithmetical. A surviving spouse with substantial assets of their own may find the calculation produces little or nothing extra, even against a large estate, because their own property has already absorbed the entitlement. A surviving spouse with nothing takes close to the full fraction. The statute is measuring a shortfall, not handing out a prize.

A prenuptial or postnuptial agreement can waive it

There is one reliable way to leave a spouse out of the estate, and it requires their signature rather than your drafting. Virginia permits the right of election, the homestead allowance, exempt property and the family allowance to be waived "wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse". Before or after: a postnuptial agreement does this as well as a prenuptial one.

The statute then sets out how such a waiver falls apart, and the two routes are worth reading in order. The first is that the waiver "was not executed voluntarily". The second is unconscionability, which requires three things together: no fair and reasonable disclosure of the decedent's property and financial obligations, no voluntary written waiver of the right to further disclosure, and no adequate knowledge that the surviving spouse had or reasonably could have had.

Read that carefully and the drafting instruction writes itself. Disclosure is the defence. A schedule of assets and liabilities attached to the agreement, initialled, is what makes the second route unavailable years later — and the same discipline that makes a prenuptial agreement enforceable in a divorce is what makes it hold at death. Unconscionability is decided by the court as a matter of law rather than by a jury, and the surviving spouse carries the burden of proving either defect.

The deadline is short, and missing it ends the argument

The single most actionable fact on this page is that the right expires. It is not a claim the survivor can raise whenever the estate is finally settled, and there is no general saving provision for a spouse who was grieving, or who did not know the will existed.

Florida measures from a different event again: the election must be filed by the earlier of six months after the notice of administration is served on the surviving spouse, or two years after the date of death. New York allows six months from the issuance of letters, capped at two years from death, with a discretionary extension. Four states, four different trigger events — which is why the first thing to establish is not the percentage but the date.

Gather that before speaking to a probate lawyer rather than after. The election is a filing with a date on it, and the work of valuing an augmented estate takes longer than the window allows if it starts late.

What this actually means for the person writing the will

The uncomfortable conclusion is that estate planning cannot solve a marital problem. Every device that moves assets out of probate — the trust, the joint account, the beneficiary designation — was built to avoid probate, not to avoid a spouse, and in an augmented-estate state it does not do the second job at all. Drafting harder does not help; the harder the drafting, the more plainly it reads as the diversion the statute was written to catch.

That leaves two honest routes. Provide for the spouse at or above the statutory share, which removes the incentive to elect — the election only pays where it beats what the will already gives. Or obtain a waiver, in writing, with full disclosure, while both of you are alive and able to negotiate it. Anything else is a plan that survives only for as long as nobody files.