In most common-law states, you cannot fully disinherit a spouse by will. The elective share is the statutory floor: a surviving spouse may reject what the will leaves them and instead claim a share fixed by state law. It exists on the theory that marriage creates an economic partnership the law will not let one party unilaterally erase.
The size of that share, how it is calculated, and what property counts toward it vary substantially from state to state, and some tie the fraction to the length of the marriage. A number you read for one state tells you nothing reliable about another. Community property states generally address the same concern through their own ownership rules instead.
What counts is often broader than the probate estate. Many states apply the election against an augmented estate that reaches back to include assets moved into trusts, joint accounts, and beneficiary-designated holdings. Attempts to sidestep the election by retitling everything outside probate frequently fail for that reason.
The right must be exercised affirmatively and within a window set by statute — it is not automatic, and it lapses if missed. A spouse can also waive it in advance by a valid prenuptial or postnuptial agreement, subject to that state's requirements for disclosure and voluntariness. Anyone facing this should get advice for their own state promptly.
Frequently asked
- Can I disinherit my spouse?
- Not unilaterally in most states. A surviving spouse can generally reject the will and claim a statutory share instead, and many states measure that share against an augmented estate that includes trusts and beneficiary-designated assets, so restructuring ownership rarely defeats it. The reliable route is a valid prenuptial or postnuptial agreement in which the spouse waives the right knowingly. Requirements for a valid waiver vary by state.
- Does the elective share apply to my retirement accounts?
- Sometimes, and there is a separate federal layer. Certain employer-sponsored plans governed by federal law generally require spousal consent before naming someone else as beneficiary, independent of any state elective share. State law then determines whether other accounts count toward the augmented estate. The interaction between federal plan rules and state elective share statutes is genuinely complicated, so treat this as a question for a local attorney.
- How does an elective share interact with a trust?
- Less protectively than people assume. Many states expressly reach revocable trust assets when calculating the augmented estate, precisely because moving property into a trust was an obvious avoidance route. Transfers made shortly before death can also draw scrutiny. Trusts remain excellent tools for probate avoidance, privacy, and control, but they are unreliable as a way to reduce a spouse's statutory claim.