A statutory forced share, also known as an elective share, is the minimum percentage of a deceased spouse’s estate that a surviving spouse or child is legally entitled to receive, regardless of being disinherited in the will. This share grants full ownership of the property to the survivor, but it only applies to the deceased spouse’s property at the time of their death and can be invalidated by inter vivos transfer.
The term “statutory forced share” is used in wills and estates to describe the percentage of a deceased spouse’s estate that a surviving spouse or child can choose to receive instead of what is specified in the will or if they are unfairly disinherited. This percentage is determined by law and is also referred to as a forced share or statutory share. For instance, if a husband passes away and leaves his entire estate to his children, his wife may have the right to claim a statutory forced share of his estate, which could be 30% or more depending on the laws of the state. This means that she can opt to receive 30% of the estate instead of what was designated for her in the will. It is important to note that the statutory forced share only applies to the property owned by the deceased spouse at the time of their death. If the spouse had transferred ownership of their property before passing away, the surviving spouse may not be eligible for a forced share. Overall, the statutory forced share serves as a means to safeguard surviving spouses and children from being completely disinherited by their deceased loved ones.
A statutory forced share refers to the portion of a deceased person’s estate that is legally required to be given to certain family members, regardless of what is stated in the person’s will.
The specific individuals entitled to a statutory forced share vary depending on the jurisdiction, but typically include the surviving spouse and children of the deceased.
The calculation of the statutory forced share also varies by jurisdiction, but it is usually a percentage of the deceased person’s estate, such as one-third or one-half.
In most cases, the deceased person’s will cannot override the statutory forced share. The purpose of the forced share is to protect certain family members from being completely disinherited.
If the estate does not have sufficient assets to fulfill the statutory forced share, the distribution may be adjusted accordingly. This could mean that each entitled family member receives a reduced share or that certain assets are sold to generate the necessary funds.
In some jurisdictions, the statutory forced share can be waived or modified through a valid prenuptial or postnuptial agreement. However, this is not always the case, and it is important to consult with a legal professional to understand the specific laws in your jurisdiction.
If the deceased person did not have a will, the statutory forced share laws still apply. The estate will be distributed according to these laws, ensuring that the entitled family members receive their share.
In certain circumstances, the statutory forced share can be challenged. This may occur if there is evidence of fraud, undue influence, or lack of mental capacity when the deceased person made their will or other estate planning documents.
The entitlement to a statutory forced share for a common-law spouse varies by jurisdiction. In some places, common-law spouses may be entitled to the same share as legally married spouses, while in others, they may not be entitled to any share.
Transferring assets before death with the intention of avoiding the statutory forced share is generally not allowed. Many jurisdictions have laws in place to prevent such actions and may consider them fraudulent transfers.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 16th April 2024.
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