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This Article examines one form of property rights available to a surviving
spouse, the elective share. The elective share serves as an override to a
testator’s stated intent by allowing the surviving spouse to choose to take a
portion of the decedent’s estate — even if the will explicitly disinherits the
surviving spouse. The Article analyzes a recent five-year period of state
cases raising elective share issues with the goal of determining the
circumstances under which an elective share is most likely to be contested.

The reported elective share disputes typically involve a subsequent spouse
challenging a will that leaves property to an earlier family. The petitioners
are almost invariably women. The length of the marriage ranges from a few
months to decades, and some of the cases involve waiver of the share, some
involve estranged spouses, and a few involve marriage fraud. Disputes over
the elective share illustrate family tensions, rarely involving parents against
joint children, and more frequently pitting a surviving spouse against the
decedent’s earlier families.

The Article provides an empirical assessment of the current rationales for
the elective share and suggests revisions to existing elective share
approaches that reflect both differing theories of what values marriage
should represent and the changing demography of marriage and

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