ELECTIVE SHARE OF SURVIVING SPOUSE GENERAL COMMENT Uniform Probate Code
The elective share of the surviving spouse was fundamentally revised in 1990 and was reorganized and clarified in 1993 and 2008. The main purpose of the revisions is to bring elective-share law into line with the contemporary view of marriage as an economic partnership. The economic partnership theory of marriage is already implemented under the equitable- distribution system applied in both the common-law and community-property states when a marriage ends in divorce. When a marriage ends in death, that theory is also already implemented under the community-property system and under the system promulgated in the Model Marital Property Act. In the common-law states, however, elective-share law has not caught up to the partnership theory of marriage.
The general effect of implementing the partnership theory in elective-share law is to increase the entitlement of a surviving spouse in a long-term marriage in cases in which the marital assets were disproportionately titled in the decedent’s name; and to decrease or even eliminate the entitlement of a surviving spouse in a long-term marriage in cases in which the
The general effect of implementing the partnership theory in elective-share law is to increase the entitlement of a surviving spouse in a long-term marriage in cases in which the marital assets were disproportionately titled in the decedent’s name; and to decrease or even eliminate the entitlement of a surviving spouse in a long-term marriage in cases in which the
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marital assets were more or less equally titled or disproportionately titled in the surviving spouse’s name. A further general effect is to decrease or even eliminate the entitlement of a surviving spouse in a short-term, later-in-life marriage (typically a post-widowhood remarriage) in which neither spouse contributed much, if anything, to the acquisition of the other’s wealth, except that a special supplemental elective-share amount is provided in cases in which the surviving spouse would otherwise be left without sufficient funds for support.
The Partnership Theory of Marriage
The partnership theory of marriage, sometimes also called the marital-sharing theory, is stated in various ways. Sometimes it is thought of “as an expression of the presumed intent of husbands and wives to pool their fortunes on an equal basis, share and share alike.” M. Glendon, The Transformation of Family Law 131 (1989). Under this approach, the economic rights of each spouse are seen as deriving from an unspoken marital bargain under which the partners agree that each is to enjoy a half interest in the fruits of the marriage, i.e., in the property nominally acquired by and titled in the sole name of either partner during the marriage (other than in property acquired by gift or inheritance). A decedent who disinherits his or her surviving spouse is seen as having reneged on the bargain. Sometimes the theory is expressed in restitutionary terms, a return-of-contribution notion. Under this approach, the law grants each spouse an entitlement to compensation for non-monetary contributions to the marital enterprise, as “a recognition of the activity of one spouse in the home and to compensate not only for this activity but for opportunities lost.” Id. See also American Law Institute, Principles of Family Dissolution § 4.09 Comment c (2002).
No matter how the rationale is expressed, the community-property system, including that version of community law promulgated in the Model Marital Property Act, recognizes the partnership theory, but it is sometimes thought that the common-law system denies it. In the ongoing marriage, it is true that the basic principle in the common-law (title-based) states is that marital status does not affect the ownership of property. The regime is one of separate property. Each spouse owns all that he or she earns. By contrast, in the community-property states, each spouse acquires an ownership interest in half the property the other earns during the marriage. By granting each spouse upon acquisition an immediate half interest in the earnings of the other, the community-property regimes directly recognize that the couple’s enterprise is in essence collaborative.
The common-law states, however, also give effect or purport to give effect to the partnership theory when a marriage is dissolved by divorce. If the marriage ends in divorce, a spouse who sacrificed his or her financial-earning opportunities to contribute so-called domestic services to the marital enterprise (such as child-rearing and homemaking) stands to be recompensed. All states now follow the equitable-distribution system upon divorce, under which “broad discretion [is given to] trial courts to assign to either spouse property acquired during the marriage, irrespective of title, taking into account the circumstances of the particular case and recognizing the value of the contributions of a nonworking spouse or homemaker to the acquisition of that property. Simply stated, the system of equitable distribution views marriage as essentially a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute – directly and indirectly, financially and nonfinancially – the fruits of which
The Partnership Theory of Marriage
The partnership theory of marriage, sometimes also called the marital-sharing theory, is stated in various ways. Sometimes it is thought of “as an expression of the presumed intent of husbands and wives to pool their fortunes on an equal basis, share and share alike.” M. Glendon, The Transformation of Family Law 131 (1989). Under this approach, the economic rights of each spouse are seen as deriving from an unspoken marital bargain under which the partners agree that each is to enjoy a half interest in the fruits of the marriage, i.e., in the property nominally acquired by and titled in the sole name of either partner during the marriage (other than in property acquired by gift or inheritance). A decedent who disinherits his or her surviving spouse is seen as having reneged on the bargain. Sometimes the theory is expressed in restitutionary terms, a return-of-contribution notion. Under this approach, the law grants each spouse an entitlement to compensation for non-monetary contributions to the marital enterprise, as “a recognition of the activity of one spouse in the home and to compensate not only for this activity but for opportunities lost.” Id. See also American Law Institute, Principles of Family Dissolution § 4.09 Comment c (2002).
No matter how the rationale is expressed, the community-property system, including that version of community law promulgated in the Model Marital Property Act, recognizes the partnership theory, but it is sometimes thought that the common-law system denies it. In the ongoing marriage, it is true that the basic principle in the common-law (title-based) states is that marital status does not affect the ownership of property. The regime is one of separate property. Each spouse owns all that he or she earns. By contrast, in the community-property states, each spouse acquires an ownership interest in half the property the other earns during the marriage. By granting each spouse upon acquisition an immediate half interest in the earnings of the other, the community-property regimes directly recognize that the couple’s enterprise is in essence collaborative.
The common-law states, however, also give effect or purport to give effect to the partnership theory when a marriage is dissolved by divorce. If the marriage ends in divorce, a spouse who sacrificed his or her financial-earning opportunities to contribute so-called domestic services to the marital enterprise (such as child-rearing and homemaking) stands to be recompensed. All states now follow the equitable-distribution system upon divorce, under which “broad discretion [is given to] trial courts to assign to either spouse property acquired during the marriage, irrespective of title, taking into account the circumstances of the particular case and recognizing the value of the contributions of a nonworking spouse or homemaker to the acquisition of that property. Simply stated, the system of equitable distribution views marriage as essentially a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute – directly and indirectly, financially and nonfinancially – the fruits of which
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are distributable at divorce.” J. Gregory, The Law of Equitable Distribution ¶ 1.03, at p. 1-6 (1989).
The other situation in which spousal property rights figure prominently is disinheritance at death. The original (pre-1990) Uniform Probate Code, along with almost all other non-UPC common-law states, treats this as one of the few instances in American law where the decedent’s testamentary freedom with respect to his or her title-based ownership interests must be curtailed. No matter what the decedent’s intent, the original Uniform Probate Code and almost all of the non-UPC common-law states recognize that the surviving spouse does have some claim to a portion of the decedent’s estate. These statutes provide the spouse a so-called forced share. The forced share is expressed as an option that the survivor can elect or let lapse during the administration of the decedent’s estate, hence in the UPC the forced share is termed the “elective” share.
Elective-share law in the common-law states, however, has not caught up to the partnership theory of marriage. Under typical American elective-share law, including the elective share provided by the original Uniform Probate Code, a surviving spouse may claim a one-third share of the decedent’s estate – not the 50 percent share of the couple’s combined assets that the partnership theory would imply.
Long-term Marriages. To illustrate the discrepancy between the partnership theory and conventional elective-share law, consider first a long-term marriage, in which the couple’s combined assets were accumulated mostly during the course of the marriage. The original elective-share fraction of one-third of the decedent’s estate plainly does not implement a partnership principle. The actual result depends on which spouse happens to die first and on how the property accumulated during the marriage was nominally titled.
Example 1 – Long-term Marriage under Conventional Forced-share Law. Consider A and B, who were married in their twenties or early thirties; they never divorced, and A died at age, say, 70, survived by B. For whatever reason, A left a will entirely disinheriting B.
Throughout their long life together, the couple managed to accumulate assets worth $600,000, marking them as a somewhat affluent but hardly wealthy couple.
Under conventional elective-share law, B’s ultimate entitlement depends on the manner in which these $600,000 in assets were nominally titled as between them. B could end up much poorer or much richer than a 50/50 partnership principle would suggest. The reason is that under conventional elective-share law, B has a claim to one-third of A’s “estate.”
Marital Assets Disproportionately Titled in Decedent’s Name; Conventional Elective- share Law Frequently Entitles Survivor to Less Than Equal Share of Marital Assets. If all the marital assets were titled in A’s name, B’s claim against A’s estate would only be for $200,000 – well below B’s $300,000 entitlement produced by the partnership/marital-sharing principle.
If $500,000 of the marital assets were titled in A’s name, B’s claim against A’s estate would still only be for $166,667 (1/3 of $500,000), which when combined with B’s “own”
The other situation in which spousal property rights figure prominently is disinheritance at death. The original (pre-1990) Uniform Probate Code, along with almost all other non-UPC common-law states, treats this as one of the few instances in American law where the decedent’s testamentary freedom with respect to his or her title-based ownership interests must be curtailed. No matter what the decedent’s intent, the original Uniform Probate Code and almost all of the non-UPC common-law states recognize that the surviving spouse does have some claim to a portion of the decedent’s estate. These statutes provide the spouse a so-called forced share. The forced share is expressed as an option that the survivor can elect or let lapse during the administration of the decedent’s estate, hence in the UPC the forced share is termed the “elective” share.
Elective-share law in the common-law states, however, has not caught up to the partnership theory of marriage. Under typical American elective-share law, including the elective share provided by the original Uniform Probate Code, a surviving spouse may claim a one-third share of the decedent’s estate – not the 50 percent share of the couple’s combined assets that the partnership theory would imply.
Long-term Marriages. To illustrate the discrepancy between the partnership theory and conventional elective-share law, consider first a long-term marriage, in which the couple’s combined assets were accumulated mostly during the course of the marriage. The original elective-share fraction of one-third of the decedent’s estate plainly does not implement a partnership principle. The actual result depends on which spouse happens to die first and on how the property accumulated during the marriage was nominally titled.
Example 1 – Long-term Marriage under Conventional Forced-share Law. Consider A and B, who were married in their twenties or early thirties; they never divorced, and A died at age, say, 70, survived by B. For whatever reason, A left a will entirely disinheriting B.
Throughout their long life together, the couple managed to accumulate assets worth $600,000, marking them as a somewhat affluent but hardly wealthy couple.
Under conventional elective-share law, B’s ultimate entitlement depends on the manner in which these $600,000 in assets were nominally titled as between them. B could end up much poorer or much richer than a 50/50 partnership principle would suggest. The reason is that under conventional elective-share law, B has a claim to one-third of A’s “estate.”
Marital Assets Disproportionately Titled in Decedent’s Name; Conventional Elective- share Law Frequently Entitles Survivor to Less Than Equal Share of Marital Assets. If all the marital assets were titled in A’s name, B’s claim against A’s estate would only be for $200,000 – well below B’s $300,000 entitlement produced by the partnership/marital-sharing principle.
If $500,000 of the marital assets were titled in A’s name, B’s claim against A’s estate would still only be for $166,667 (1/3 of $500,000), which when combined with B’s “own”
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$100,000 yields a $266,667 cut for B – still below the $300,000 figure produced by the partnership/ marital-sharing principle.
Marital Assets Equally Titled; Conventional Elective-share Law Entitles Survivor to Disproportionately Large Share. If $300,000 of the marital assets were titled in A’s name, B would still have a claim against A’s estate for $100,000, which when combined with B’s “own” $300,000 yields a $400,000 cut for B – well above the $300,000 amount to which the partnership/marital-sharing principle would lead.
Marital Assets Disproportionately Titled in Survivor’s Name; Conventional Elective- share Law Entitles Survivor to Magnify the Disproportion. If only $200,000 were titled in A’s name, B would still have a claim against A’s estate for $66,667 (1/3 of $200,000), even though B was already overcompensated as judged by the partnership/marital-sharing theory.
Short-term, Later-in-Life Marriages. Short-term marriages, particularly the post- widowhood remarriage occurring later in life, present different considerations. Because each spouse in this type of marriage typically comes into the marriage owning assets derived from a former marriage, the one-third fraction of the decedent’s estate far exceeds a 50/50 division of assets acquired during the marriage.
Example 2 – Short-term, Later-in-Life Marriage under Conventional Elective-share Law.
Consider B and C. A year or so after A’s death, B married C. Both B and C are in their seventies, and after five years of marriage, B dies survived by C. Both B and C have adult children and a few grandchildren by their prior marriages, and each naturally would prefer to leave most or all of his or her property to those children.
The value of the couple’s combined assets is $600,000, $300,000 of which is titled in B’s name (the decedent) and $300,000 of which is titled in C’s name (the survivor).
For reasons that are not immediately apparent, conventional elective-share law gives the survivor, C, a right to claim one-third of B’s estate, thereby shrinking B’s estate (and hence the share of B’s children by B’s prior marriage to A) by $100,000 (reducing it to $200,000) while supplementing C’s assets (which will likely go to C’s children by C’s prior marriage) by $100,000 (increasing their value to $400,000).
Conventional elective-share law, in other words, basically rewards the children of the remarried spouse who manages to outlive the other, arranging for those children a windfall share of one-third of the “loser’s” estate. The “winning” spouse who chanced to survive gains a windfall, for this “winner” is unlikely to have made a contribution, monetary or otherwise, to the “loser’s” wealth remotely worth one-third.
The Redesigned Elective Share
The redesigned elective share is intended to bring elective-share law into line with the partnership theory of marriage.
Marital Assets Equally Titled; Conventional Elective-share Law Entitles Survivor to Disproportionately Large Share. If $300,000 of the marital assets were titled in A’s name, B would still have a claim against A’s estate for $100,000, which when combined with B’s “own” $300,000 yields a $400,000 cut for B – well above the $300,000 amount to which the partnership/marital-sharing principle would lead.
Marital Assets Disproportionately Titled in Survivor’s Name; Conventional Elective- share Law Entitles Survivor to Magnify the Disproportion. If only $200,000 were titled in A’s name, B would still have a claim against A’s estate for $66,667 (1/3 of $200,000), even though B was already overcompensated as judged by the partnership/marital-sharing theory.
Short-term, Later-in-Life Marriages. Short-term marriages, particularly the post- widowhood remarriage occurring later in life, present different considerations. Because each spouse in this type of marriage typically comes into the marriage owning assets derived from a former marriage, the one-third fraction of the decedent’s estate far exceeds a 50/50 division of assets acquired during the marriage.
Example 2 – Short-term, Later-in-Life Marriage under Conventional Elective-share Law.
Consider B and C. A year or so after A’s death, B married C. Both B and C are in their seventies, and after five years of marriage, B dies survived by C. Both B and C have adult children and a few grandchildren by their prior marriages, and each naturally would prefer to leave most or all of his or her property to those children.
The value of the couple’s combined assets is $600,000, $300,000 of which is titled in B’s name (the decedent) and $300,000 of which is titled in C’s name (the survivor).
For reasons that are not immediately apparent, conventional elective-share law gives the survivor, C, a right to claim one-third of B’s estate, thereby shrinking B’s estate (and hence the share of B’s children by B’s prior marriage to A) by $100,000 (reducing it to $200,000) while supplementing C’s assets (which will likely go to C’s children by C’s prior marriage) by $100,000 (increasing their value to $400,000).
Conventional elective-share law, in other words, basically rewards the children of the remarried spouse who manages to outlive the other, arranging for those children a windfall share of one-third of the “loser’s” estate. The “winning” spouse who chanced to survive gains a windfall, for this “winner” is unlikely to have made a contribution, monetary or otherwise, to the “loser’s” wealth remotely worth one-third.
The Redesigned Elective Share
The redesigned elective share is intended to bring elective-share law into line with the partnership theory of marriage.
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In the long-term marriage illustrated in Example 1, the effect of implementing a partnership theory is to increase the entitlement of the surviving spouse when the marital assets were disproportionately titled in the decedent’s name; and to decrease or even eliminate the entitlement of the surviving spouse when the marital assets were more or less equally titled or disproportionately titled in the surviving spouse’s name. Put differently, the effect is both to reward the surviving spouse who sacrificed his or her financial-earning opportunities in order to contribute so-called domestic services to the marital enterprise and to deny an additional windfall to the surviving spouse in whose name the fruits of a long-term marriage were mostly titled.
In the short-term, later-in-life marriage illustrated in Example 2, the effect of implementing a partnership theory is to decrease or even eliminate the entitlement of the surviving spouse because in such a marriage neither spouse is likely to have contributed much, if anything, to the acquisition of the other’s wealth. Put differently, the effect is to deny a windfall to the survivor who contributed little to the decedent’s wealth, and ultimately to deny a windfall to the survivor’s children by a prior marriage at the expense of the decedent’s children by a prior marriage. Bear in mind that in such a marriage, which produces no children, a decedent who disinherits or largely disinherits the surviving spouse may not be acting so much from malice or spite toward the surviving spouse, but from a natural instinct to want to leave most or all of his or her property to the children of his or her former, long-term marriage. In hardship cases, however, as explained later, a special supplemental elective-share amount is provided when the surviving spouse would otherwise be left without sufficient funds for support.
2008 Revisions. When first promulgated in the early 1990s, the statute provided that the “elective-share percentage” increased annually according to a graduated schedule. The “elective-share percentage” ranged from a low of 0 percent for a marriage of less than one year to a high of 50 percent for a marriage of 15 years or more. The “elective-share percentage” did double duty. The system equated the “elective-share percentage” of the couple’s combined assets with 50 percent of the marital-property portion of the couple’s assets – the assets that are subject to equalization under the partnership theory of marriage. Consequently, the elective share effected the partnership theory rather indirectly. Although the schedule was designed to represent by approximation a constant fifty percent of the marital-property portion of the couple’s assets (the augmented estate), it did not say so explicitly.
The 2008 revisions are designed to present the system in a more direct form, one that makes the system more transparent and therefore more understandable. The 2008 revisions disentangle the elective-share percentage from the system that approximates the marital-property portion of the augmented estate. As revised, the statute provides that the “elective-share percentage” is always 50 percent, but it is not 50 percent of the augmented estate but 50 percent of the “marital-property portion” of the augmented estate. The marital-property portion of the augmented estate is computed by approximation – by applying the percentages set forth in a graduated schedule that increases annually with the length of the marriage (each “marital-portion percentage” being double the percentage previously set forth in the “elective-share percentage” schedule). Thus, for example, under the former system, the elective-share amount in a marriage of 10 years was 30 percent of the augmented estate. Under the revised system, the elective-share amount is 50 percent of the marital-property portion of the augmented estate, the marital- property portion of the augmented estate being 60 percent of the augmented estate.
In the short-term, later-in-life marriage illustrated in Example 2, the effect of implementing a partnership theory is to decrease or even eliminate the entitlement of the surviving spouse because in such a marriage neither spouse is likely to have contributed much, if anything, to the acquisition of the other’s wealth. Put differently, the effect is to deny a windfall to the survivor who contributed little to the decedent’s wealth, and ultimately to deny a windfall to the survivor’s children by a prior marriage at the expense of the decedent’s children by a prior marriage. Bear in mind that in such a marriage, which produces no children, a decedent who disinherits or largely disinherits the surviving spouse may not be acting so much from malice or spite toward the surviving spouse, but from a natural instinct to want to leave most or all of his or her property to the children of his or her former, long-term marriage. In hardship cases, however, as explained later, a special supplemental elective-share amount is provided when the surviving spouse would otherwise be left without sufficient funds for support.
2008 Revisions. When first promulgated in the early 1990s, the statute provided that the “elective-share percentage” increased annually according to a graduated schedule. The “elective-share percentage” ranged from a low of 0 percent for a marriage of less than one year to a high of 50 percent for a marriage of 15 years or more. The “elective-share percentage” did double duty. The system equated the “elective-share percentage” of the couple’s combined assets with 50 percent of the marital-property portion of the couple’s assets – the assets that are subject to equalization under the partnership theory of marriage. Consequently, the elective share effected the partnership theory rather indirectly. Although the schedule was designed to represent by approximation a constant fifty percent of the marital-property portion of the couple’s assets (the augmented estate), it did not say so explicitly.
The 2008 revisions are designed to present the system in a more direct form, one that makes the system more transparent and therefore more understandable. The 2008 revisions disentangle the elective-share percentage from the system that approximates the marital-property portion of the augmented estate. As revised, the statute provides that the “elective-share percentage” is always 50 percent, but it is not 50 percent of the augmented estate but 50 percent of the “marital-property portion” of the augmented estate. The marital-property portion of the augmented estate is computed by approximation – by applying the percentages set forth in a graduated schedule that increases annually with the length of the marriage (each “marital-portion percentage” being double the percentage previously set forth in the “elective-share percentage” schedule). Thus, for example, under the former system, the elective-share amount in a marriage of 10 years was 30 percent of the augmented estate. Under the revised system, the elective-share amount is 50 percent of the marital-property portion of the augmented estate, the marital- property portion of the augmented estate being 60 percent of the augmented estate.
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The primary benefit of these changes is that the statute, as revised, presents the elective- share’s implementation of the partnership theory of marriage in a direct rather than indirect form, adding clarity and transparency to the system. An important byproduct of the revision is that it facilitates the inclusion of an alternative provision for enacting states that want to implement the partnership theory of marriage but prefer not to define the marital-property portion by approximation but by classification. Under the deferred marital-property approach, the marital- property portion consists of the value of the couple’s property that was acquired during the marriage other than by gift or inheritance. (See below.)
The 2008 revisions are based on a proposal presented in Waggoner, “The Uniform Probate Code’s Elective Share: Time for a Reassessment,” 37 U. Mich. J. L. Reform 1 (2003), an article that gives a more extensive explanation of the rationale of the 2008 revisions.
Specific Features of the Redesigned Elective Share
Because ease of administration and predictability of result are prized features of the probate system, the redesigned elective share implements the marital-partnership theory by means of a mechanically determined approximation system. Under the redesigned elective share, there is no need to identify which of the couple’s property was earned during the marriage and which was acquired prior to the marriage or acquired during the marriage by gift or inheritance. For further discussion of the reasons for choosing this method, see Waggoner, “Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J. 683 (1992).
Section 2-202(a) – The “Elective-share Amount.” Under Section 2-202(a), the elective- share amount is equal to 50 percent of the value of the “marital-property portion of the augmented estate.” The marital-property portion of the augmented estate, which is determined under Section 2-203(b), increases with the length of the marriage. The longer the marriage, the larger the “marital-property portion of the augmented estate.” The sliding scale adjusts for the correspondingly greater contribution to the acquisition of the couple’s marital property in a marriage of 15 years than in a marriage of 15 days. Specifically, the “marital-property portion of the augmented estate” starts low and increases annually according to a graduated schedule until it reaches 100 percent. After one year of marriage, the marital-property portion of the augmented estate is six percent of the augmented estate and it increases with each additional year of marriage until it reaches the maximum 100 percent level after 15 years of marriage.
Section 2-203(a) – the “Augmented Estate.” The elective-share percentage of 50 percent is applied to the value of the “marital-property portion of the augmented estate.” As defined in Section 2-203, the “augmented estate” equals the value of the couple’s combined assets, not merely the value of the assets nominally titled in the decedent’s name.
More specifically, the “augmented estate” is composed of the sum of four elements: Section 2-204 – the value of the decedent’s net probate estate;
The 2008 revisions are based on a proposal presented in Waggoner, “The Uniform Probate Code’s Elective Share: Time for a Reassessment,” 37 U. Mich. J. L. Reform 1 (2003), an article that gives a more extensive explanation of the rationale of the 2008 revisions.
Specific Features of the Redesigned Elective Share
Because ease of administration and predictability of result are prized features of the probate system, the redesigned elective share implements the marital-partnership theory by means of a mechanically determined approximation system. Under the redesigned elective share, there is no need to identify which of the couple’s property was earned during the marriage and which was acquired prior to the marriage or acquired during the marriage by gift or inheritance. For further discussion of the reasons for choosing this method, see Waggoner, “Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J. 683 (1992).
Section 2-202(a) – The “Elective-share Amount.” Under Section 2-202(a), the elective- share amount is equal to 50 percent of the value of the “marital-property portion of the augmented estate.” The marital-property portion of the augmented estate, which is determined under Section 2-203(b), increases with the length of the marriage. The longer the marriage, the larger the “marital-property portion of the augmented estate.” The sliding scale adjusts for the correspondingly greater contribution to the acquisition of the couple’s marital property in a marriage of 15 years than in a marriage of 15 days. Specifically, the “marital-property portion of the augmented estate” starts low and increases annually according to a graduated schedule until it reaches 100 percent. After one year of marriage, the marital-property portion of the augmented estate is six percent of the augmented estate and it increases with each additional year of marriage until it reaches the maximum 100 percent level after 15 years of marriage.
Section 2-203(a) – the “Augmented Estate.” The elective-share percentage of 50 percent is applied to the value of the “marital-property portion of the augmented estate.” As defined in Section 2-203, the “augmented estate” equals the value of the couple’s combined assets, not merely the value of the assets nominally titled in the decedent’s name.
More specifically, the “augmented estate” is composed of the sum of four elements: Section 2-204 – the value of the decedent’s net probate estate;
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Section 2-205 – the value of the decedent’s nonprobate transfers to others, consisting of will-substitute-type inter-vivos transfers made by the decedent to others than the surviving spouse;
Section 2-206 – the value of the decedent’s nonprobate transfers to the surviving spouse, consisting of will-substitute-type inter-vivos transfers made by the decedent to the surviving spouse; and
Section 2-207 – the value of the surviving spouse’s net assets at the decedent’s death, plus any property that would have been in the surviving spouse’s nonprobate transfers to others under Section 2-205 had the surviving spouse been the decedent.
Section 2-203(b) — the “Marital-property portion” of the Augmented Estate. Section 2- 203(b) defines the marital-property portion of the augmented estate.
Section 2-202(a) – the “Elective-share Amount.” Section 2-202(a) requires the elective- share percentage of 50 percent to be applied to the value of the marital-property portion of the augmented estate. This calculation yields the “elective-share amount” – the amount to which the surviving spouse is entitled. If the elective-share percentage were to be applied only to the marital-property portion of the decedent’s assets, a surviving spouse who has already been overcompensated in terms of the way the marital-property portion of the couple’s assets have been nominally titled would receive a further windfall under the elective-share system. The marital-property portion of the couple’s assets, in other words, would not be equalized. By applying the elective-share percentage of 50 percent to the marital-property portion of the augmented estate (the couple’s combined assets), the redesigned system denies any significance to how the spouses took title to particular assets.
Section 2-209 – Satisfying the Elective-share Amount. Section 2-209 determines how the elective-share amount is to be satisfied. Under Section 2-209, the decedent’s net probate estate and nonprobate transfers to others are liable to contribute to the satisfaction of the elective-share amount only to the extent the elective-share amount is not fully satisfied by the sum of the following amounts:
Subsection (a)(1) – amounts that pass or have passed from the decedent to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under Section 2-206, i.e. the value of the decedent’s nonprobate transfers to the surviving spouse; and
Subsection (a)(2) – the marital-property portion of amounts included in the augmented estate under Section 2-207.
If the combined value of these amounts equals or exceeds the elective-share amount, the surviving spouse is not entitled to any further amount from recipients of the decedent’s net probate estate or nonprobate transfers to others, unless the surviving spouse is entitled to a supplemental elective-share amount under Section 2-202(b).
Example 3 – 15-Year or Longer Marriage under Redesigned Elective Share; Marital
Section 2-206 – the value of the decedent’s nonprobate transfers to the surviving spouse, consisting of will-substitute-type inter-vivos transfers made by the decedent to the surviving spouse; and
Section 2-207 – the value of the surviving spouse’s net assets at the decedent’s death, plus any property that would have been in the surviving spouse’s nonprobate transfers to others under Section 2-205 had the surviving spouse been the decedent.
Section 2-203(b) — the “Marital-property portion” of the Augmented Estate. Section 2- 203(b) defines the marital-property portion of the augmented estate.
Section 2-202(a) – the “Elective-share Amount.” Section 2-202(a) requires the elective- share percentage of 50 percent to be applied to the value of the marital-property portion of the augmented estate. This calculation yields the “elective-share amount” – the amount to which the surviving spouse is entitled. If the elective-share percentage were to be applied only to the marital-property portion of the decedent’s assets, a surviving spouse who has already been overcompensated in terms of the way the marital-property portion of the couple’s assets have been nominally titled would receive a further windfall under the elective-share system. The marital-property portion of the couple’s assets, in other words, would not be equalized. By applying the elective-share percentage of 50 percent to the marital-property portion of the augmented estate (the couple’s combined assets), the redesigned system denies any significance to how the spouses took title to particular assets.
Section 2-209 – Satisfying the Elective-share Amount. Section 2-209 determines how the elective-share amount is to be satisfied. Under Section 2-209, the decedent’s net probate estate and nonprobate transfers to others are liable to contribute to the satisfaction of the elective-share amount only to the extent the elective-share amount is not fully satisfied by the sum of the following amounts:
Subsection (a)(1) – amounts that pass or have passed from the decedent to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under Section 2-206, i.e. the value of the decedent’s nonprobate transfers to the surviving spouse; and
Subsection (a)(2) – the marital-property portion of amounts included in the augmented estate under Section 2-207.
If the combined value of these amounts equals or exceeds the elective-share amount, the surviving spouse is not entitled to any further amount from recipients of the decedent’s net probate estate or nonprobate transfers to others, unless the surviving spouse is entitled to a supplemental elective-share amount under Section 2-202(b).
Example 3 – 15-Year or Longer Marriage under Redesigned Elective Share; Marital
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Assets Disproportionately Titled in Decedent’s Name. A and B were married to each other more than 15 years. A died, survived by B. A’s will left nothing to B, and A made no nonprobate transfers to B. A made nonprobate transfers to others in the amount of $100,000 as defined in Section 2-205.
A’s net probate estate
A’s nonprobate transfers to others A’s nonprobate transfers to B B’s assets and nonprobate transfers to others Augmented Estate |
Augmented Estate
$300,000 $100,000 $0 $200,000 $600,000 |
Marital-Property Portion (100%)
$300,000 $100,000 $0 $200,000 $600,000 |
Elective-Share Amount (50% of Marital-property portion) ...................................$300,000 Less amount already Satisfied ................................................................................$200,000 Unsatisfied Balance ................................................................................................$100,000
| ||
Under Section 2-209(a)(2), the full value of B’s assets ($200,000) counts first toward satisfyingB’sentitlement. B,therefore,istreatedasalreadyhavingreceived$200,000ofB’s ultimate entitlement of $300,000. Section 2-209(c) makes A’s net probate estate and nonprobate transfers to others liable for the unsatisfied balance of the elective-share amount, $100,000, which is the amount needed to bring B’s own $200,000 up to $300,000.
Example 4 – 15-Year or Longer Marriage under Redesigned Elective Share; Marital Assets Disproportionately Titled in Survivor’s Name. As in Example 3, A and B were married to each other more than 15 years. A died, survived by B. A’s will left nothing to B, and A made no nonprobate transfers to B. A made nonprobate transfers to others in the amount of $50,000 as defined in Section 2-205.
Example 4 – 15-Year or Longer Marriage under Redesigned Elective Share; Marital Assets Disproportionately Titled in Survivor’s Name. As in Example 3, A and B were married to each other more than 15 years. A died, survived by B. A’s will left nothing to B, and A made no nonprobate transfers to B. A made nonprobate transfers to others in the amount of $50,000 as defined in Section 2-205.
A’s net probate estate
A’s nonprobate transfers to others A’s nonprobate transfers to B
A’s nonprobate transfers to others A’s nonprobate transfers to B
Augmented Estate
$150,000 $50,000 $0
$150,000 $50,000 $0
Marital-Property Portion (100%)
$150,000 $50,000 $0
$150,000 $50,000 $0
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B’s assets and nonprobate transfers to
others $400,000 $400,000
Augmented Estate $600,000 $600,000
Under Section 2-209(a)(2), the full value of B’s assets ($400,000) counts first toward satisfying B’s entitlement. B, therefore, is treated as already having received more than B’s ultimate entitlement of $300,000. B has no claim on A’s net probate estate or nonprobate transfers to others.
In a marriage that has lasted less than 15 years, only a portion of the survivor’s assets – not all – count toward making up the elective-share amount. This is because, in these shorter- term marriages, the marital-property portion of the survivor’s assets under Section 2-203(b) is less than 100% and, under Section 2-209(a)(2), the portion of the survivor’s assets that count toward making up the elective-share amount is limited to the marital-property portion of those assets.
To explain why this is appropriate requires further elaboration of the underlying theory of the redesigned system. The system avoids the classification and tracing-to-source problems in determining the marital-property portion of the couple’s assets. This is accomplished under Section 2-203(b) by applying an ever-increasing percentage, as the length of the marriage increases, to the couple’s combined assets without regard to when or how those assets were acquired. By approximation, the redesigned system equates the marital-property portion of the couple’s combined assets with the couple’s marital assets – assets subject to equalization under the partnership/marital-sharing theory. Thus, in a marriage that has endured long enough for the marital-property portion of their assets to be 60% under Section 2-203(b), 60% of each spouse’s assets are treated as marital assets. Section 2-209(a)(2) therefore counts only 60% of the survivor’s assets toward making up the elective share amount.
Example 5 – Under 15-Year Marriage under the Redesigned Elective Share; Marital Assets Disproportionately Titled in Decedent’s Name. A and B were married to each other more than 5 but less than 6 years. A died, survived by B. A’s will left nothing to B, and A made no nonprobate transfers to B. A made nonprobate transfers to others in the amount of $100,000 as defined in Section 2-205.
others $400,000 $400,000
Augmented Estate $600,000 $600,000
Under Section 2-209(a)(2), the full value of B’s assets ($400,000) counts first toward satisfying B’s entitlement. B, therefore, is treated as already having received more than B’s ultimate entitlement of $300,000. B has no claim on A’s net probate estate or nonprobate transfers to others.
In a marriage that has lasted less than 15 years, only a portion of the survivor’s assets – not all – count toward making up the elective-share amount. This is because, in these shorter- term marriages, the marital-property portion of the survivor’s assets under Section 2-203(b) is less than 100% and, under Section 2-209(a)(2), the portion of the survivor’s assets that count toward making up the elective-share amount is limited to the marital-property portion of those assets.
To explain why this is appropriate requires further elaboration of the underlying theory of the redesigned system. The system avoids the classification and tracing-to-source problems in determining the marital-property portion of the couple’s assets. This is accomplished under Section 2-203(b) by applying an ever-increasing percentage, as the length of the marriage increases, to the couple’s combined assets without regard to when or how those assets were acquired. By approximation, the redesigned system equates the marital-property portion of the couple’s combined assets with the couple’s marital assets – assets subject to equalization under the partnership/marital-sharing theory. Thus, in a marriage that has endured long enough for the marital-property portion of their assets to be 60% under Section 2-203(b), 60% of each spouse’s assets are treated as marital assets. Section 2-209(a)(2) therefore counts only 60% of the survivor’s assets toward making up the elective share amount.
Example 5 – Under 15-Year Marriage under the Redesigned Elective Share; Marital Assets Disproportionately Titled in Decedent’s Name. A and B were married to each other more than 5 but less than 6 years. A died, survived by B. A’s will left nothing to B, and A made no nonprobate transfers to B. A made nonprobate transfers to others in the amount of $100,000 as defined in Section 2-205.
Elective-Share Amount (50% of Marital-property portion) ...................................$300,000 Less amount already Satisfied ................................................................................$400,000 Unsatisfied Balance ...........................................................................................................$0
A’s net probate estate
Augmented Estate Marital-Property Portion (30%)
$300,000 $90,000
$300,000 $90,000
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A’s nonprobate transfers to others
A’s nonprobate transfers to B
B’s assets and nonprobate transfers to others Augmented Estate
A’s nonprobate transfers to B
B’s assets and nonprobate transfers to others Augmented Estate
$100,000 $0 $200,000 $600,000
$30,000 $0 $60,000 $180,000
Elective-Share Amount (50% of Marital-property portion).....................................$90,000 Less amount already Satisfied ..................................................................................$60,000 Unsatisfied Balance ..................................................................................................$30,000
Under Section 2-209(a)(2), the marital-property portion of B’s assets (30% of $200,000, or $60,000) counts first toward satisfying B’s entitlement. B, therefore, is treated as already having received $60,000 of B’s ultimate entitlement of $90,000. Under Section 2-209(c), B has a claim on A’s net probate estate and nonprobate transfers to others of $30,000.
Deferred Marital-Property Alternative
By making the elective share percentage a flat 50 percent of the marital-property portion of the augmented estate, the 2008 revision disentangles the elective share percentage from the approximation schedule, thus allowing the marital-property portion of the augmented estate to be defined either by the approximation schedule or by the deferred-marital-property approach. Although one of the benefits of the 2008 revision is added clarity, an important byproduct of the revision is that it facilitates the inclusion of an alternative provision for enacting states that prefer a deferred marital-property approach. See Alan Newman, Incorporating the Partnership Theory of Marriage into Elective-Share Law: the Approximation System of the Uniform Probate Code and the Deferred-Community-Property Alternative, 49 Emory L.J. 487 (2000).
The Support Theory
The partnership/marital-sharing theory is not the only driving force behind elective-share law. Another theoretical basis for elective-share law is that the spouses’ mutual duties of support during their joint lifetimes should be continued in some form after death in favor of the survivor, as a claim on the decedent’s estate. Current elective-share law implements this theory poorly. The fixed fraction, whether it is the typical one-third or some other fraction, disregards the survivor’s actual need. A one-third share may be inadequate to the surviving spouse’s needs, especially in a modest estate. On the other hand, in a very large estate, it may go far beyond the survivor’s needs. In either a modest or a large estate, the survivor may or may not have ample independent means, and this factor, too, is disregarded in conventional elective-share law. The redesigned elective share system implements the support theory by granting the survivor a supplemental elective-share amount related to the survivor’s actual needs. In implementing a support rationale, the length of the marriage is quite irrelevant. Because the duty of support is founded upon status, it arises at the time of the marriage.
Deferred Marital-Property Alternative
By making the elective share percentage a flat 50 percent of the marital-property portion of the augmented estate, the 2008 revision disentangles the elective share percentage from the approximation schedule, thus allowing the marital-property portion of the augmented estate to be defined either by the approximation schedule or by the deferred-marital-property approach. Although one of the benefits of the 2008 revision is added clarity, an important byproduct of the revision is that it facilitates the inclusion of an alternative provision for enacting states that prefer a deferred marital-property approach. See Alan Newman, Incorporating the Partnership Theory of Marriage into Elective-Share Law: the Approximation System of the Uniform Probate Code and the Deferred-Community-Property Alternative, 49 Emory L.J. 487 (2000).
The Support Theory
The partnership/marital-sharing theory is not the only driving force behind elective-share law. Another theoretical basis for elective-share law is that the spouses’ mutual duties of support during their joint lifetimes should be continued in some form after death in favor of the survivor, as a claim on the decedent’s estate. Current elective-share law implements this theory poorly. The fixed fraction, whether it is the typical one-third or some other fraction, disregards the survivor’s actual need. A one-third share may be inadequate to the surviving spouse’s needs, especially in a modest estate. On the other hand, in a very large estate, it may go far beyond the survivor’s needs. In either a modest or a large estate, the survivor may or may not have ample independent means, and this factor, too, is disregarded in conventional elective-share law. The redesigned elective share system implements the support theory by granting the survivor a supplemental elective-share amount related to the survivor’s actual needs. In implementing a support rationale, the length of the marriage is quite irrelevant. Because the duty of support is founded upon status, it arises at the time of the marriage.
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Section 2-202(b) – the “Supplemental Elective-share Amount.” Section 2-202(b) is the provision that implements the support theory by providing a supplemental elective-share amount of $75,000. The $75,000 figure is bracketed to indicate that individual states may wish to select a higher or lower amount.
In satisfying this $75,000 amount, the surviving spouse’s own titled-based ownership interests count first toward making up this supplemental amount; included in the survivor’s assets for this purpose are amounts shifting to the survivor at the decedent’s death and amounts owing to the survivor from the decedent’s estate under the accrual-type elective-share apparatus discussed above, but excluded are (1) amounts going to the survivor under the Code’s probate exemptions and allowances and (2) the survivor’s Social Security benefits (and other governmental benefits, such as Medicare insurance coverage). If the survivor’s assets are less than the $75,000 minimum, then the survivor is entitled to whatever additional portion of the decedent’s estate is necessary, up to 100 percent of it, to bring the survivor’s assets up to that minimum level. In the case of a late marriage, in which the survivor is perhaps aged in the mid- seventies, the minimum figure plus the probate exemptions and allowances (which under the Code amount to a minimum of another $64,500) is pretty much on target – in conjunction with Social Security payments and other governmental benefits – to provide the survivor with a fairly adequate means of support.
Example 6 – Supplemental Elective-share Amount. After A’s death in Example 1, B married C. Five years later, B died, survived by C. B’s will left nothing to C, and B made no nonprobate transfers to C. B made no nonprobate transfers to others as defined in Section 2-205.
In satisfying this $75,000 amount, the surviving spouse’s own titled-based ownership interests count first toward making up this supplemental amount; included in the survivor’s assets for this purpose are amounts shifting to the survivor at the decedent’s death and amounts owing to the survivor from the decedent’s estate under the accrual-type elective-share apparatus discussed above, but excluded are (1) amounts going to the survivor under the Code’s probate exemptions and allowances and (2) the survivor’s Social Security benefits (and other governmental benefits, such as Medicare insurance coverage). If the survivor’s assets are less than the $75,000 minimum, then the survivor is entitled to whatever additional portion of the decedent’s estate is necessary, up to 100 percent of it, to bring the survivor’s assets up to that minimum level. In the case of a late marriage, in which the survivor is perhaps aged in the mid- seventies, the minimum figure plus the probate exemptions and allowances (which under the Code amount to a minimum of another $64,500) is pretty much on target – in conjunction with Social Security payments and other governmental benefits – to provide the survivor with a fairly adequate means of support.
Example 6 – Supplemental Elective-share Amount. After A’s death in Example 1, B married C. Five years later, B died, survived by C. B’s will left nothing to C, and B made no nonprobate transfers to C. B made no nonprobate transfers to others as defined in Section 2-205.
B’s net probate estate
B’s nonprobate transfers to others B’s nonprobate transfers to C C’s assets and nonprobate transfers to others Augmented Estate |
Augmented Estate
$90,000 $0 $0 $10,000 $100,000 |
Marital-Property Portion (30%)
$27,000 $0 $0 $3,000 $30,000 |
Elective-Share Amount (50% of Marital-property portion) .....................................$90,000 Less amount already Satisfied ..................................................................................$60,000 Unsatisfied Balance ..................................................................................................$30,000
| ||
Solution under Redesigned Elective Share. Under Section 2-209(a)(2), $3,000 (30%) of C’s assets count first toward making up C’s elective-share amount; under Section 2-209(c), the remaining $12,000 elective-share amount would come from B’s net probate estate.
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Application of Section 2-202(b) shows that C is entitled to a supplemental elective-share amount. The calculation of C’s supplemental elective-share amount begins by determining the sum of the amounts described in sections:
2-207 .........................................................................................................................$10,000 2-209(a)(1) ........................................................................................................................... 0 Elective-share amount payable from decedent’s probate estate
under Section 2-209(c)..............................................................................................$12,000
Total ..........................................................................................................................$22,000
The above calculation shows that C is entitled to a supplemental elective-share amount under Section 2-202(b) of $53,000 ($75,000 minus $22,000). The supplemental elective-share amount is payable entirely from B’s net probate estate, as prescribed in Section 2-209(c).
The end result is that C is entitled to $65,000 ($12,000 + $53,000) by way of elective share from B’s net probate estate (and nonprobate transfers to others, had there been any). Sixty- five thousand dollars is the amount necessary to bring C’s $10,000 in assets up to $75,000.
Decedent’s Nonprobate Transfers to Others
The pre-1990 Code made great strides toward preventing “fraud on the spouse’s share.” The problem of “fraud on the spouse’s share” arises when the decedent seeks to evade the spouse’s elective share by engaging in various kinds of nominal inter-vivos transfers. To render that type of behavior ineffective, the original Code adopted the augmented-estate concept, which extended the elective-share entitlement to property that was the subject of specified types of inter-vivos transfer, such as revocable inter-vivos trusts.
In the redesign of the elective share, the augmented-estate concept has been strengthened. The pre-1990 Code left several loopholes ajar in the augmented estate – a notable one being life insurance the decedent buys, naming someone other than his or her surviving spouse as the beneficiary. With appropriate protection for the insurance company that pays off before receiving notice of an elective-share claim, the redesigned elective-share system includes these types of insurance policies in the augmented estate as part of the decedent’s nonprobate transfers to others under Section 2-205.
Historical Note. This General Comment was revised in 1993 and in 2008.
2008 Legislative Note: States that have previously enacted the UPC elective share need not amend their enactment, except that (1) the supplemental elective-share amount under Section 2-202(b) should be increased to $75,000, (2) the amendment to Section 2-205(3) relating to gifts within two years of death should be adopted, and (3) Section 2-209(e) should be added so that the unsatisfied balance of the elective-share or supplemental elective-share amount is treated as a general pecuniary devise for purposes of Section 3-904.
2-207 .........................................................................................................................$10,000 2-209(a)(1) ........................................................................................................................... 0 Elective-share amount payable from decedent’s probate estate
under Section 2-209(c)..............................................................................................$12,000
Total ..........................................................................................................................$22,000
The above calculation shows that C is entitled to a supplemental elective-share amount under Section 2-202(b) of $53,000 ($75,000 minus $22,000). The supplemental elective-share amount is payable entirely from B’s net probate estate, as prescribed in Section 2-209(c).
The end result is that C is entitled to $65,000 ($12,000 + $53,000) by way of elective share from B’s net probate estate (and nonprobate transfers to others, had there been any). Sixty- five thousand dollars is the amount necessary to bring C’s $10,000 in assets up to $75,000.
Decedent’s Nonprobate Transfers to Others
The pre-1990 Code made great strides toward preventing “fraud on the spouse’s share.” The problem of “fraud on the spouse’s share” arises when the decedent seeks to evade the spouse’s elective share by engaging in various kinds of nominal inter-vivos transfers. To render that type of behavior ineffective, the original Code adopted the augmented-estate concept, which extended the elective-share entitlement to property that was the subject of specified types of inter-vivos transfer, such as revocable inter-vivos trusts.
In the redesign of the elective share, the augmented-estate concept has been strengthened. The pre-1990 Code left several loopholes ajar in the augmented estate – a notable one being life insurance the decedent buys, naming someone other than his or her surviving spouse as the beneficiary. With appropriate protection for the insurance company that pays off before receiving notice of an elective-share claim, the redesigned elective-share system includes these types of insurance policies in the augmented estate as part of the decedent’s nonprobate transfers to others under Section 2-205.
Historical Note. This General Comment was revised in 1993 and in 2008.
2008 Legislative Note: States that have previously enacted the UPC elective share need not amend their enactment, except that (1) the supplemental elective-share amount under Section 2-202(b) should be increased to $75,000, (2) the amendment to Section 2-205(3) relating to gifts within two years of death should be adopted, and (3) Section 2-209(e) should be added so that the unsatisfied balance of the elective-share or supplemental elective-share amount is treated as a general pecuniary devise for purposes of Section 3-904.
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