Raymond's Elective Share Decision
Eunice Park died March 3, 2025, survived by her second husband, Raymond, and two adult children from her first marriage, Dana and Miles. Her 2019 will, signed by Eunice and two witnesses, leaves the residue to Raymond. Assets: a house titled in Eunice's and Raymond's names as joint tenants with right of survivorship ($620,000); a $400,000 life insurance policy naming Raymond; a $150,000 brokerage account with a payable-on-death designation to Dana; and a $90,000 savings account in Eunice's name alone. The jurisdiction gives a surviving spouse an elective share of one-third of the augmented estate and requires the petition within nine months of death. Raymond believes he takes everything.
1. Identify the probate assets and explain which additional assets the paralegal must value for the elective-share calculation.
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Probate assets: $90,000. Only the savings account passes under the will and through the personal representative. Everything else passes by operation of law or by beneficiary designation and never touches the probate estate.
Augmented estate. Under a UPC-style statute the elective share is not computed on the probate estate. The paralegal must also value:
- The JTWROS house - at least Eunice's contribution to it; confirm whether the jurisdiction counts one-half or a contribution-based fraction for spousal joint tenancies.
- The $400,000 life insurance naming Raymond - a nonprobate transfer to the surviving spouse.
- The $150,000 POD account to Dana - a nonprobate transfer to a third party.
- Any property the surviving spouse already holds that was derived from Eunice.
On these figures the augmented estate is roughly $1,260,000 and one-third is roughly $420,000.
Deadline: nine months from March 3, 2025 - December 3, 2025. Calendar it now; it is not extendable by agreement.
Caveat for the attorney: confirm the state's definition before any figure goes to the client. Elective-share statutes vary materially on insurance, joint tenancy, and third-party transfers.
2. Raymond asks whether he should elect against the will. Advise him.
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Show him the arithmetic. The residue passing to him under the will is only the $90,000 savings account. One-third of an augmented estate of roughly $1,260,000 is roughly $420,000 - which looks like a large gain.
But the share is satisfied, not stacked. Under the UPC framework, the value of nonprobate transfers to the surviving spouse counts toward satisfying the elective share. Raymond already received the insurance ($400,000) and the survivorship share of the house. Even at one-half of the house ($310,000), he has already received roughly $710,000 - well above $420,000.
The result of electing is negative. He would surrender the $90,000 residue (the election forfeits the will's gifts) and gain nothing, because his elective share is already fully funded by assets he holds.
Recommendation to the attorney: advise Raymond to take under the will, not against it. Have him sign a written acknowledgment of the analysis. Run the same numbers against the actual statute first - if the jurisdiction excludes spousal insurance from the setoff, the answer reverses, and this is the single fact most worth verifying before the meeting.
3. Dana asks whether she must give up the POD account. Answer her.
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Short answer: probably not, on these numbers.
The POD account is a nonprobate transfer to a third party and is swept into the augmented estate. But the elective share is a claim measured in dollars, not a right to claw back specific accounts. A third-party transferee's liability is limited to the amount needed to fund any unsatisfied portion of the share, and is generally proportionate.
Here there is no shortfall to fund. Raymond's own receipts from the augmented estate already exceed the roughly $420,000 elective share, so nothing remains for anyone to contribute. Dana keeps the $150,000.
What actually threatens Dana is different. If Eunice's will or the intestacy scheme left a gap, or if Raymond had received nothing, Dana would face a contribution claim. Advise her in writing of two things: (1) the current answer depends on facts that can still change - a different valuation of the house, or a court ruling on the insurance setoff, flips the arithmetic; and (2) she should not spend the money until the nine-month period closes on December 3, 2025 without a petition being filed.