The Elective Share

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The Alabama Code provides that the surviving spouse of a deceased Alabama resident has the right to choose, or take an elective share, of the deceased spouse’s estate instead of the share in the deceased’s will. This is known as the elective share. The elective share is a percentage of the deceased spouse’s estate that the legislature created to protect surviving spouses from being wrongfully disinherited.

A spouse may sign away their his or her right to assert an elective share per a valid prenuptial agreement. However, an agreement to waive the right to an elective share made during the marriage is not a valid waiver.

What Constitutes the Elective Share

The law limits the right of the surviving spouse even when exercising the elective share. That elective share must be the smaller portion of either the entire estate of the deceased minus the value of the surviving spouse’s separate estate; or one-third of the estate of the deceased. Often it will be one-third of the estate. During probate, a court calculates the value of one third of the deceased spouse’s separate estate and compares that with the value of the deceased spouse’s separate estate minus the surviving spouse’s separate estate. The smaller value will then be used as the elective share.

Calculation of the Separate Estate

To calculate the separate estate of the surviving spouse, the estate includes:

  • All real estate owned outright by the surviving spouse immediately after the death of the deceased spouse;
  • All interests in property acquired for the possession or enjoyment of only the surviving spouse;
  • All income and other beneficial interests in a trust, in proceeds of insurance on the life of the deceased spouse, and interest under any broad-based nondiscriminatory pension, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer.


For a surviving spouse to exercise the right to an elective share, he or she files with the court and mails or delivers a petition to the personal representative of the deceased spouse’s estate, if any, for the elective share. The petition must be within six months after the date of death, or within six months after the probate of the deceased spouse’s will, whichever occurs later.

If a probate court determines the right to an elective share then it will order it paid from estate assets.

Saylor Case

In Saylor, the surviving spouse requested an extension for exercising her elective share of the estate after the six month window expired. The probate court granted the request and the deceased’s personal representative appealed. During oral arguments to the Alabama Supreme Court, the surviving spouse argued that she should be granted an extension on equitable grounds because she was ignorant of the elective share and her attorney did not advise her that she was entitled to such. The court rejected her argument, reasoning that the law was not flexible so there would be efficiency of estate administration. Since she filed after the six-month period she was therefore time barred.

If you are looking to draft a will or dealing with probate issues, contact the the law firm of Parkman White. They have the expertise and experience to get results.

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