Inheritance and Succession, Sociology Of

Separate Property States and the Spouse's Elective Share

Within the United States, most states have adopted a separate property regime, whereby property is owned by each individual regardless of marital status. To prevent one spouse from disinheriting the other, almost all separate property states provide the surviving spouse with the right to an elective share. The survivor usually claims the elective share when the decedent attempts to leave the survivor less than the elective-share amount. A twentieth-century U.S. innovation, the elective share originally gave the surviving spouse the right to a fixed portion (often onethird) of the deceased spouse's probate estate. Recognizing that a spouse might attempt to reduce the survivor's elective-share award by converting probate to nonprobate assets or by transferring properties shortly before death, some states use a subjective test to determine whether in such instances an asset should nevertheless be included in the probate estate for elective-share calculations. By contrast, [Page 759]both the 1969 and 1990 versions of the Uniform Probate Code (UPC) automatically include certain nonprobate properties in the elective-share scheme. Although each state promulgates its own set of inheritance laws, the UPC is an important work of model legislation that has been adopted in large part by several states. Many other states have adopted various individual provisions from the UPC.

In a significant departure from earlier electiveshare law, the UPC 1990 bases the elective share on the length of the marriage and the wealth of both spouses. Unlike the approach of community property states, however, the assets are examined without regard to source or time of acquisition. The UPC 1990 thus incorporates the modern view of marriage as a partnership, albeit one that ripens into full partnership only over time. Each spouse's interest in the partnership increases annually until the couple's fifteenth anniversary, from which time forward, the surviving spouse is entitled to no less than one-half of the total marital wealth in the combined estates. The UPC 1990 also provides the needy surviving spouse with a supplemental elective share, another innovation in elective-share law. As of 2005, these elective-share provisions have been adopted in a small minority of jurisdictions.

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