Alabama, like many separate property states, has laws to stop a person from leaving his or her spouse penniless. These laws reflect public policy that a person should not be allowed to leave his or her spouse destitute by making little or no provision for the surviving spouse in his or her Last Will and Testament. This protection is embodied in Alabama’s elective share statute.
The elective share is a choice given to the surviving spouse to renounce or dissent from the decedent’s will. The Alabama elective share statute gives a spouse (without regard to gender) the choice of either taking whatever the decedent left under the will or taking an “elective share” of the decedent’s estate. The elective share is the lesser of: (a) the value of the decedent’s estate minus the value of the spouse’s estate; or (b) one-third of the decedent’s estate. A simple mathematical computation using these variables will help determine whether a spouse will benefit from an elective share.
The Alabama probate code differs from the Uniform Probate Code in its treatment of the elective share. Under the Uniform Probate Code, the decedent’s separate estate is “augmented” to include the value of pre-death gifts made to the surviving spouse and gifts made during the marriage to others where the decedent retained some form of control, ownership, or benefit. The augmented estate would include, for example, pre-death transfers into trusts, joint ownership arrangements, and property passing by rights of survivorship.
The Alabama Supreme Court has noted that Alabama specifically refused to adopt the augmented estate methodology when it enacted the Alabama probate code in 1982. Instead, the Alabama statute simply takes into account the probate estate as it exists at the time of death. This effectively means that if the surviving spouse has the larger estate at the time of the decedent’s death, the elective share will be zero. Furthermore, when determining a spouse’s elective share, the decedent’s gross estate must be reduced by the homestead allowance and other allowances.
Like other allowances under Alabama law, the surviving spouse must affirmatively elect to claim his or her elective share. A Petition for Elective Share must be made within six months after the date of death or within six months after the probate of the will, whichever is later. The court can extend this time period if there is good cause as long as the extension is requested and granted within the election time period.
If the surviving spouse elects to dissent from the will and claim his or her elective share within the proper time period, the court will then hold a hearing to determine the proper amount of the elective share and will order that the elective share be satisfied from the assets of the estate. Alabama law sets forth an order of priority for the assets that can be used to satisfy the elective share.
The elective share is entirely different from the homestead, exempt property, and family allowances provided under Alabama law. The surviving spouse is entitled to these allowances regardless of whether he or she dissents from the will and claims an elective share. This means that the surviving spouse can effectively take everything that he or she is entitled to under the will and request the full homestead, exempt property, and family allowances without making an election against the will.