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Individuated Determination of a Surviving Spouse’s Elective Share

Jeffrey N. Pennell

Vol. 53

June 2020

Page 2473

The statutory right of a surviving spouse to elect against a decedent’s estate plan is a blunt instrument that addresses ill-defined goals. Elective shares are not based on an evaluation of the facts and circumstances of a particular marriage, such as the relative wealth of the spouses or the relative needs of other objects of the decedent’s bounty. This Essay describes two empirical studies of decedents who disfranchised their surviving spouses and concludes that courts could address the modest number of controversial cases and make individuated determinations regarding devolution of a married decedent’s wealth, much the same as marital property is divided in divorce.

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