Prenuptial Agreement Elective Share: What It Is and Why It Matters
Prenuptial agreements have become increasingly popular in recent years as more people seek to protect their assets and financial interests before getting married. One important aspect of a prenuptial agreement is the elective share, which is a legal concept that can have a significant impact on the distribution of property and assets in the event of divorce or death. In this article, we`ll take a closer look at what the elective share is, how it works, and why it`s important to consider when creating a prenuptial agreement.
What Is the Elective Share?
The elective share is a legal provision that provides a surviving spouse with a certain percentage of their deceased partner`s estate, regardless of what is specified in the deceased partner`s will. In other words, even if a person`s will states that their spouse is not entitled to any inheritance, the surviving spouse may still be able to claim a portion of the estate under the elective share.
The exact percentage of the elective share varies depending on state law, but it typically ranges from one-third to one-half of the deceased partner`s estate. In some states, the elective share may also include certain assets that are not part of the probate estate, such as life insurance policies or retirement accounts.
How Does the Elective Share Work?
The elective share is designed to protect surviving spouses from being completely disinherited by their partners. It ensures that even if a person`s will does not provide for their spouse, the surviving spouse still has a legal right to claim a portion of the estate.
To claim the elective share, the surviving spouse must file a claim with the probate court within a certain amount of time after the deceased partner`s death. The court will then determine the value of the estate and calculate the amount of the elective share to which the surviving spouse is entitled. This amount will be paid out to the surviving spouse from the deceased partner`s estate before any other distributions are made.
Why Is the Elective Share Important in Prenuptial Agreements?
The elective share is an important factor to consider when creating a prenuptial agreement because it can override the terms of the agreement in certain circumstances. For example, if a prenup specifies that a spouse will not receive any inheritance in the event of the other spouse`s death, but the surviving spouse is entitled to an elective share under state law, the prenup may be unenforceable.
To avoid this kind of situation, it`s important for couples to work with experienced attorneys who can help them create a prenuptial agreement that takes the elective share into account. This may involve specific provisions that address how the elective share will be handled, or it may require a more flexible approach that allows for changes in the agreement as state laws and other factors evolve over time.
In summary, the elective share is an important legal concept that can have a significant impact on the distribution of property and assets in the event of divorce or death. If you`re considering a prenuptial agreement, it`s important to work with an experienced attorney who can help you navigate the complexities of the law and create an agreement that meets your individual needs and goals.