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Spousal Election: What Is It And Why Would A Surviving Spouse Elect It

spousal selection will and estate law for elder care

Why do you need to understand spousal election?

It used to happen more frequently than it does today, back when it was more difficult to get a divorce. That is, cutting a surviving spouse out of the will or leaving them with little to nothing to live on.

We’ve all heard the stories of long, drawn-out, nasty divorces. And we’ve also heard the stories of surviving widows who get drawn into lengthy probate battles with surviving children and end up with nothing from their marriages. After months, years, or a lifetime of grievances between spouses who stayed married instead of getting divorced, the acrimony can be deep. Despite any such discord, there are rules today that prevent people from disinheriting their spouses.

Fortunately, some people felt there was a duty to care for one’s spouse…

Even though there are plenty who do, most people don’t want to deprive their surviving spouses of support. This is where spousal election comes in to play.

Fortunately, spousal election is a rule in most states. The details of this rule vary by state. However, the rule allows a surviving spouse to elect to receive whatever is or is not given to her/him in the estate plan or to receive a certain percentage of the total assets of the estate. Commonly, this election is for between one-third and one-half in most states.

Even with the spousal election rule in place, some spouses will still try to work around the law. To do this, they’ll use a revocable trust to effectively disinherit a spouse.

The reason for the rule is that people felt there was a duty to care for one’s own spouse and that it would be wrong to leave a widow destitute.

Georgia does not have a spousal election, but it still realizes the need and focus to provide for the surviving spouse through what is known as Petition for a Year’s Support.

Much like a spousal election, a Petition for a Year’s Support requests that the Probate Court approve a specific amount of money to be set aside for the surviving spouse’s support for one year.

Make It Your Business To Learn About Spousal Election Laws In Your State

If you are in an acrimonious marriage, it’s important to learn about and understand spousal inheritance rights.  People can be very sneaky as they try to find ways of getting around laws. And there are many complex situations that can arise which could lead to the rules becoming very important to a surviving spouse.

If you need help navigating the rules of spousal elections in Georgia, give my office a call at 404-370-0696. Marriage is always difficult. But no matter how difficult it is or has been, no one deserves to be left destitute.


Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!

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