PETITION FOR SPOUSAL ELECTIVE SHARE

Surviving Spouse's Election to Take Against the Will

PART 1: COURT CAPTION AND FILING INFORMATION

IN THE _____________ COURT

_____________ COUNTY, STATE OF _____________

PETITION FOR SPOUSAL ELECTIVE SHARE

The Petitioner, _________________________________, surviving spouse of the above-named Decedent, respectfully petitions this Court for an order granting Petitioner's election to take an elective share of the Decedent's estate pursuant to [State Statute Citation] and states as follows:

PART 2: PARTIES AND STANDING

Section A: Petitioner (Surviving Spouse)

Section B: Decedent Information

Section C: Marriage Information

Marital Status at Death:

☐ Legally married and residing together
☐ Legally married but living separately
☐ Legal separation pending
☐ Divorce pending

Was there a valid premarital or postnuptial agreement?
☐ No
☐ Yes - Agreement attached or filed in case

PART 3: ESTATE AND PROBATE INFORMATION

Section A: Probate Case Status

Section B: Will Provisions for Surviving Spouse

Under the Decedent's Will, Petitioner is entitled to receive:

☐ Petitioner is not named in the Will
☐ Petitioner was intentionally disinherited
☐ Petitioner's share under Will is less than elective share

PART 4: TIMELINESS OF ELECTION

Section A: Statutory Deadline Calculation

Applicable Statute: _________________________________

Filing Deadline Calculation:

☐ This Petition is timely filed within the statutory period

Section B: Request for Extension (If Applicable)

☐ Petitioner requests extension of time to elect for the following reasons:

______________________________________________________________________________

PART 5: ELECTIVE SHARE CALCULATION

Section A: Applicable Elective Share Percentage

State Elective Share System:

☐ Fixed Percentage System
Elective share percentage: _______% of augmented/net estate

☐ Sliding Scale Based on Length of Marriage (UPC Approach)

Length of Marriage: _______ years
Applicable Percentage: _______%

☐ Community Property State - Elective share not applicable
(Community property laws govern spousal rights)

Section B: Augmented Estate Calculation (If Applicable)

The "augmented estate" typically includes:

Section C: Elective Share Amount Calculation

Section D: Amounts Credited Against Elective Share

The following amounts are credited toward satisfying the elective share:

Section E: Net Elective Share Due

PART 6: ASSETS SUBJECT TO CONTRIBUTION

Section A: Order of Abatement/Contribution

Property to satisfy elective share shall be taken in the following order:

☐ Residuary estate - Property passing under residuary clause
☐ General devises - Gifts of general amounts (not specific property)
☐ Specific devises - Gifts of specific property
☐ Non-probate transfers (if probate estate insufficient)

Section B: Specific Assets Requested

PART 7: ADDITIONAL CLAIMS AND RIGHTS

Section A: Other Statutory Rights

In addition to the elective share, Petitioner claims:

☐ Homestead Rights
Property address: _________________________________
Value: $_____________
Applicable statute: _________________________________

☐ Family Allowance
Amount requested: $_____________
Duration: _____________
Applicable statute: _________________________________

☐ Exempt Property
Items claimed: _________________________________
Value: $_____________
Applicable statute: _________________________________

☐ Intestate Share (if applicable)
Petitioner alternatively claims intestate share if no valid will

Section B: Waiver of Other Rights

By electing against the Will, Petitioner:

☐ Understands they may forfeit certain provisions under the Will
☐ Waives right to specific bequests under the Will totaling: $_____________
☐ Accepts that election may affect other estate planning documents

PART 8: EFFECT OF PREMARITAL/MARITAL AGREEMENTS

Section A: Existence of Agreement

☐ No prenuptial or postnuptial agreement exists

☐ Prenuptial Agreement Exists
Date executed: _________________________________
Provisions regarding elective share: _________________________________

☐ Postnuptial Agreement Exists
Date executed: _________________________________
Provisions regarding elective share: _________________________________

Section B: Validity Challenge (If Applicable)

☐ Petitioner does NOT challenge the validity of any agreement

☐ Petitioner CHALLENGES the agreement's validity because:
☐ Agreement was not voluntarily signed
☐ Agreement was procured by fraud
☐ Inadequate disclosure of assets
☐ No opportunity to consult independent counsel
☐ Agreement is unconscionable
☐ Other: _________________________________

PART 9: VERIFICATION AND SIGNATURE

Petitioner's Verification

I, _________________________________, being duly sworn, declare:

☐ I am the surviving spouse of the Decedent named above

☐ I was legally married to the Decedent at the time of death

☐ I hereby elect to take my elective share of the Decedent's estate as provided by law

☐ I understand that this election may affect my rights under the Decedent's Will

☐ I understand that this election is irrevocable once accepted by the Court [or as provided by state law]

☐ The information provided in this Petition is true and correct to the best of my knowledge

☐ I have read and understand this Petition and its consequences

Signature: _________________________ Date: _____________

Printed Name: _________________________________

Notarization

State of _____________
County of _____________

Subscribed and sworn to before me this _____ day of _____________, 20_____.

_________________________________
Notary Public

My Commission Expires: _____________

[NOTARY SEAL]

PART 10: ATTORNEY CERTIFICATION

Attorney Information

Attorney Signature

_________________________________
Attorney for Petitioner

Date: _____________

PART 11: RELIEF REQUESTED

WHEREFORE, Petitioner respectfully requests that this Honorable Court:

1. Accept this timely election to take the spousal elective share;

2. Determine the value of the augmented estate to be $_____________;

3. Determine the elective share amount to be $_____________;

4. Order the Personal Representative to satisfy the elective share from estate assets;

5. If the probate estate is insufficient, order contribution from recipients of non-probate transfers;

6. Award Petitioner any additional statutory rights (homestead, family allowance, exempt property) to which Petitioner is entitled;

7. Award Petitioner costs and attorney's fees as permitted by law;

8. Grant such other and further relief as the Court deems just and proper.

CERTIFICATE OF SERVICE

I hereby certify that on _____________, I served a copy of this Petition on all interested parties:

☐ Personal Representative: _________________________________
☐ Attorney for Personal Representative: _________________________________
☐ Beneficiaries under Will: _________________________________
☐ Other interested parties: _________________________________

Method of Service:
☐ Personal delivery
☐ Certified mail, return receipt requested
☐ First-class mail
☐ Electronic service (where permitted)

_________________________________
Signature

STATE-SPECIFIC VARIATIONS

Common Law States with Elective Share

UPC States

States that have adopted UPC augmented estate approach:
- Colorado, Hawaii, Kansas, Maine, Montana, Nebraska, New Jersey, North Dakota, South Dakota, Utah

Community Property States

Elective share typically does not apply:
- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin

Surviving spouse already owns 50% of community property.

Deadline Variations

PRACTICE NOTES

Strategic Considerations

Elect Against Will When:
☐ Elective share exceeds bequest under Will
☐ Will contains onerous conditions
☐ Will creates trust with restricted access
☐ Will leaves life estate only

Consider NOT Electing When:
☐ Will provisions exceed elective share
☐ Will provisions are tax-advantaged
☐ Relationship with other beneficiaries important
☐ Non-probate assets already pass to spouse

Common Issues

☐ Valuation disputes regarding augmented estate
☐ Characterization of assets (probate vs. non-probate)
☐ Validity of waiver in premarital agreement
☐ Contribution from non-probate transfer recipients
☐ Interaction with trust provisions

Tax Considerations

☐ Elective share generally qualifies for marital deduction
☐ May affect estate tax calculations
☐ Consider income tax basis of assets received
☐ Consult tax advisor before electing

EXHIBITS CHECKLIST

☐ Exhibit A - Marriage Certificate
☐ Exhibit B - Death Certificate
☐ Exhibit C - Copy of Decedent's Will
☐ Exhibit D - Estate Inventory and Appraisal
☐ Exhibit E - List of Non-Probate Transfers
☐ Exhibit F - Augmented Estate Calculation Worksheet
☐ Exhibit G - Prenuptial/Postnuptial Agreement (if applicable)

This template provides guidance for filing a petition for spousal elective share. Elective share laws vary significantly by state. Strict deadlines apply. This election has significant legal and financial consequences. Consult a probate attorney licensed in your jurisdiction before filing.