SECTION 2-209. SOURCES FROM WHICH ELECTIVE SHARE PAYABLE. Uniform Probate Code

SECTION 2-209. SOURCES FROM WHICH ELECTIVE SHARE PAYABLE. Uniform Probate Code
(a) [Elective-Share Amount Only.] In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others:
(1) amounts included in the augmented estate under Section 2-204 which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under Section 2-206; and
(2) the marital-property portion of amounts included in the augmented estate under Section 2-207.

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(b) [Marital Property Portion.] The marital-property portion under subsection (a)(2) is computed by multiplying the value of the amounts included in the augmented estate under Section 2-207 by the percentage of the augmented estate set forth in the schedule in Section 2- 203(b) appropriate to the length of time the spouse and the decedent were married to each other.
(c) [Unsatisfied Balance of Elective-Share Amount; Supplemental Elective-Share Amount.] If, after the application of subsection (a), the elective-share amount is not fully satisfied, or the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent’s net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent’s nonprobate transfers to others under Section 2-205(1), (2), and (3)(B) are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent’s net probate estate and that portion of the decedent’s nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is apportioned among the recipients of the decedent’s net probate estate and of that portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.
(d) [Unsatisfied Balance of Elective-Share and Supplemental Elective-Share Amounts.] If, after the application of subsections (a) and (c), the elective-share or supplemental elective- share amount is not fully satisfied, the remaining portion of the decedent’s nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is apportioned among the recipients of the remaining portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.
(e) [Unsatisfied Balance Treated as General Pecuniary Devise.] The unsatisfied balance

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of the elective-share or supplemental elective-share amount as determined under subsection (c) or (d) is treated as a general pecuniary devise for purposes of Section 3-904.
Comment
Section 2-209 is an integral part of the overall redesign of the elective share. It establishes the priority to be used in determining the sources from which the elective-share amount is payable.
Subsection (a). Subsection (a) applies only to the elective-share amount determined under Section 2-202(a), not to the supplemental elective-share amount determined under Section 2-202(b). Under subsection (a), the following are counted first toward satisfying the elective- share amount (to the extent they are included in the augmented estate):
(1) amounts included in the augmented estate under Section 2-204 which pass or have passed 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, including the proceeds of insurance (including accidental death benefits) on the life of the decedent and benefits payable under a retirement plan in which the decedent was a participant, but excluding property passing under the Federal Social Security system; and
(2) the marital-property portion of amounts included in the augmented estate under Section 2-207.
Under subsection (b), the marital-property portion of amounts included in the augmented estate under Section 2-207 is computed by multiplying the value of the amounts included in the augmented estate under Section 2-207 by the percentage of the augmented estate set forth in the schedule in Section 2-203(b) appropriate to the length of time the spouse and the decedent were married to each other.
If the combined value of the amounts described in subsection (a)(1) and (2) equals or exceeds the elective-share amount, the surviving spouse is not entitled to any further amount from the decedent’s probate estate or recipients of the decedent’s nonprobate transfers to others, unless the surviving spouse is entitled to a supplemental elective-share amount under Section 2- 202(b).
Subsections (c) and (d). Subsections (c) and (d) apply to both the elective-share amount and the supplemental elective-share amount, if any. As to the elective-share amount determined under Section 2-202(a), the decedent’s probate estate and nonprobate transfers to others become liable only if and to the extent that the amounts described in subsection (a) are insufficient to satisfy the elective-share amount. The decedent’s probate estate and nonprobate transfers to others are fully liable for the supplemental elective-share amount determined under Section 2- 202(b), if any.
Subsections (c) and (d) establish a layer of priority within the decedent’s net probate

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estate (other than assets passing to the surviving spouse by testate or intestate succession) and nonprobate transfers to others. The decedent’s probate estate and that portion of the decedent’s nonprobate transfers to others that are included in the augmented estate under Section 2-205(1), (2), and (3)(B) are liable first. Only if and to the extent that those amounts are insufficient does the remaining portion of the decedent’s nonprobate transfers to others become liable.
Note that the exempt property and allowances provided by Sections 2-401, 2-402, and 2- 403 are not charged against, but are in addition to, the elective-share and supplemental elective- share amounts.
The provision that the spouse is charged with amounts that would have passed to the spouse but were disclaimed was deleted in 1993. That provision was introduced into the Code in 1975, prior to the addition of the QTIP provisions in the marital deduction of the federal estate tax. At that time, most devises to the surviving spouse were outright devises and did not require actuarial computation. Now, many if not most devises to the surviving spouse are in the form of an income interest that qualifies for the marital deduction under the QTIP provisions, and these devises require actuarial computations that should be avoided whenever possible.
The word “equitably” is eliminated from subsections (c) and (d) because it has caused confusion about whether it grants discretion to the court to apportion liability for the unsatisfied balance among the recipients of the decedent’s net probate estate and of that portion of the decedent’s nonprobate transfers to others in some proportion other than in proportion to the value of their interests therein. The intent of including that word in the earlier version was merely to describe the prescribed apportionment as “equitable,” not to grant authority to vary the prescribed apportionment.
Historical Note. This Comment was revised in 1993 and 2008.