SECTION 2-202. ELECTIVE SHARE. Uniform Probate Code
(a) [Elective-Share Amount.] The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this [part], to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.
(b) [Supplemental Elective-Share Amount.] If the sum of the amounts described in Sections 2-207, 2-209(a)(1), and that part of the elective-share amount payable from the decedent’s net probate estate and nonprobate transfers to others under Section 2-209(c) and (d) is less than [$75,000], the surviving spouse is entitled to a supplemental elective-share amount equal to [$75,000], minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s net probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in Section 2-209(c) and (d).
(c) [Effect of Election on Statutory Benefits.] If the right of election is exercised by or on
(a) [Elective-Share Amount.] The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this [part], to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.
(b) [Supplemental Elective-Share Amount.] If the sum of the amounts described in Sections 2-207, 2-209(a)(1), and that part of the elective-share amount payable from the decedent’s net probate estate and nonprobate transfers to others under Section 2-209(c) and (d) is less than [$75,000], the surviving spouse is entitled to a supplemental elective-share amount equal to [$75,000], minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s net probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in Section 2-209(c) and (d).
(c) [Effect of Election on Statutory Benefits.] If the right of election is exercised by or on
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behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property,
and family allowance, if any, are not charged against but are in addition to the elective-share and
supplemental elective-share amounts.
(d) [Non-Domiciliary.] The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.
Comment
Pre-1990 Provision. The pre-1990 provisions granted the surviving spouse a one-third share of the augmented estate. The one-third fraction was largely a carry over from common-law dower, under which a surviving widow had a one-third interest for life in her deceased husband’s land.
Purpose and Scope of Revisions. The revision of this section is the first step in the overall plan of implementing a partnership or marital-sharing theory of marriage, with a support theory back-up.
Subsection (a). Subsection (a) implements the partnership theory by providing that the elective-share amount is 50 percent of the value of the marital-property portion of the augmented estate. The augmented estate is defined in Section 2-203(a) and the marital-property portion of the augmented estate is defined in Section 2-203(b).
Subsection (b). Subsection (b) implements the support theory of the elective share by providing a [$75,000] supplemental elective-share amount, in case the surviving spouse’s assets and other entitlements are below this figure.
2008 Cost-of-Living Adjustments. As originally promulgated in 1990, the dollar amount in subsection (b) was $50,000. To adjust for inflation, this amount was increased in 2008 to $75,000. The dollar amount in this subsection is subject to annual cost-of-living adjustments under Section 1-109.
Subsection (c). The homestead, exempt property, and family allowances provided by Article II, Part 4, are not charged to the electing spouse as a part of the elective share. Consequently, these allowances may be distributed from the probate estate without reference to whether an elective share right is asserted.
Cross Reference. To have the right to an elective share under subsection (a), the decedent’s spouse must survive the decedent. Under Section 2-702(a), the requirement of survivorship is satisfied only if it can be established that the spouse survived the decedent by 120 hours.
(d) [Non-Domiciliary.] The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.
Comment
Pre-1990 Provision. The pre-1990 provisions granted the surviving spouse a one-third share of the augmented estate. The one-third fraction was largely a carry over from common-law dower, under which a surviving widow had a one-third interest for life in her deceased husband’s land.
Purpose and Scope of Revisions. The revision of this section is the first step in the overall plan of implementing a partnership or marital-sharing theory of marriage, with a support theory back-up.
Subsection (a). Subsection (a) implements the partnership theory by providing that the elective-share amount is 50 percent of the value of the marital-property portion of the augmented estate. The augmented estate is defined in Section 2-203(a) and the marital-property portion of the augmented estate is defined in Section 2-203(b).
Subsection (b). Subsection (b) implements the support theory of the elective share by providing a [$75,000] supplemental elective-share amount, in case the surviving spouse’s assets and other entitlements are below this figure.
2008 Cost-of-Living Adjustments. As originally promulgated in 1990, the dollar amount in subsection (b) was $50,000. To adjust for inflation, this amount was increased in 2008 to $75,000. The dollar amount in this subsection is subject to annual cost-of-living adjustments under Section 1-109.
Subsection (c). The homestead, exempt property, and family allowances provided by Article II, Part 4, are not charged to the electing spouse as a part of the elective share. Consequently, these allowances may be distributed from the probate estate without reference to whether an elective share right is asserted.
Cross Reference. To have the right to an elective share under subsection (a), the decedent’s spouse must survive the decedent. Under Section 2-702(a), the requirement of survivorship is satisfied only if it can be established that the spouse survived the decedent by 120 hours.
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Historical Note. This Comment was revised in 1993 and 2008.
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