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Question:

My sister separated from her husband back in 2001 and never saw him again. They are technically still married. Now, even if she has her daughter as the sole beneficiary under her will, the husband can come to claim the elective share. Any suggestions on how to handle this?

Response:

You are right. All states provide protections for spouses to make sure they are not disinherited. Typically this involves “electing against the will.” This means that the surviving spouse can decide not to accept what they would or would not receive under the terms of the will and to take instead what you correctly refer to as their “elective share.” How much this varies from state to state, but is often about a third of the deceased spouse’s estate.

A problem with these elective share statutes is that it’s often unclear what “estate” they cover. Only probate property is governed by the will. Property in joint names, in trust, or with beneficiary designations (such as retirement accounts) are not subject to probate and may or may not be subject to the elective share depending on state law.

Your sister may be able to use this gap to her and her daughter’s advantage by making sure nothing goes through probate. If there’s no probate, there will be no duty to give notice to your sister’s husband if her survives her. If he doesn’t have notice of her death, he will be less likely to know about it and make a claim, whether or not the spousal protections in her state cover non-probate property.

Of course, your sister’s best strategy would be to get a divorce or make sure she outlives her husband.

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