Executor's Duty: Informing Surviving Spouse of Decision Rights
It is your duty as executor to inform the surviving spouse of certain rights as soon as possible after the death of the decedent. Surviving spouses may have some important decisions to make with regard to the will and the decedent’s estate as part of the probate process. These decisions include electing to take against the will, requesting a surviving spouse’s allowance, and claiming dower.
Electing against a will
The surviving spouse has the right to elect to take against the will. Instead of receiving what the decedent left to him or her as a beneficiary under the will, he or she may choose to receive instead what that surviving spouse is entitled to under state law; his or her statutory share. The statutory share isn’t the same as the intestate share, which the surviving spouse would have received had the decedent left no will.
Because you, as executor, represent the estate and not the surviving spouse, you should not advise the spouse on whether to accept the will’s bequest and /or devise or to take the statutory share. However, be sure the surviving spouse is aware of this right.
In some jurisdictions, a spouse electing against the will just has to file a document waiving his or her share under the will and claiming the statutory share within a set period after the allowance of the will.
Electing to take against the will is an all-or-nothing proposition. The surviving spouse can’t cherry-pick, accepting some provisions, but not all. If the decedent and the surviving spouse prepared their estate plan documents together and were in agreement on their plans, such an election is unlikely.
Electing to take against the will has many consequences, some of which may not be readily apparent. For example, if the decedent exercised a power of appointment in the will over a trust in favor of the surviving spouse, and the spouse elects against the will, the spouse also loses the property subject to the power of appointment.
The estate tax consequences of a waiver should also be kept in mind, as should the fees and expenses involved in dealing with the waiver and its results.
Requesting a surviving spouse’s allowance
The surviving spouse may have the right to a surviving spouse’s allowance for the period of the administration of the estate. In order to receive this allowance, the spouse must make a claim by petition to the probate court. The allowance is usually too small to be considered worth applying for, but if your decedent left a surviving spouse, be sure to check your state’s laws to see what may be available to him or her.
Claiming dower after a spouse's death
Statutory dower exists in many states to replace common law dower and curtesy. Although dower originally only applied to widows, it now applies to widowers as well, because common law curtesy has generally been abolished.
To claim dower, the surviving spouse files a claim in the probate court within a fixed period after death. If dower is claimed, the surviving spouse must also waive the will, if applicable, and take his or her statutory share.
Few spouses find it beneficial to claim dower, because they’ve planned their wills together and don’t have a reason to take against the will, and dower is a clumsy means of inheritance. Someone may choose this option if his or her deceased spouse didn’t include them in his or her estate plan. If so, this is the only means by which the surviving spouse can receive an inheritance.