The Uniform Probate Code’s Elective Share: Time for a Reassessment (With an Addendum Reporting on Post-Publication Amendments)

This Article reproduces in a slightly revised format an Article under the same title (37 U. Mich. J. L. Reform 1 (2003)), and adds an Addendum that accounts for subsequent amendments to the UPC’s elective share. As reported in the Addendum, the Uniform Law Commission adopted many of the changes recommended in the original Article.The elective share is a statutory provision common to most probate codes in non-community-property states. The elective share protects a decedent’s surviving spouse against disinheritance. Traditional elective share law typically grants a surviving spouse a right to elect one-third of the deceased spouse’s estate, increased in some states to one-half, but the theory behind the traditional elective share amount has not until recently been carefully scrutinized. A one-third fraction can only be explained as a carryover from common law dower, but whatever the cause in early English law for choosing that fraction, there is no justification for continuing to use that fraction today.There are two plausible theories for elective share law today. One is the marital sharing theory. Under that theory, marriage is viewed as an economic partnership, a view that implies a goal of equalizing the marital assets. The other plausible theory is the support theory, that the elective share is a means of continuing the decedent’s duty of support beyond the grave. The traditional elective share statute implements neither theory. A fixed fraction of the decedent’s estate, whether it be one-third or one-half, is not coordinated with the partnership or support theories. Regarding the partnership theory, one-third or one-half of the decedent’s estate might be significantly less than the amount necessary to equalize the marital assets when those assets are disproportionately titled in the decedent’s name and considerably in excess of the amount necessary to do so when those assets are already titled equally or are disproportionately titled in the survivor’s name. Regarding the support theory, one-third or one-half might be significantly less than the amount necessary to satisfy the survivor’s support needs in a smaller estate and considerably in excess of those needs in a larger estate.Other relevant areas of the law of marriage are based on and coordinated with both the partnership and support theories. In the community property states, property law implements the partnership theory during the marriage. Family law implements both the partnership and support theories – the partnership theory upon divorce through the equitable distribution regimes and the support theory through the duty of support during the marriage and the right to alimony upon divorce. Traditional elective share law is the odd one out. The 1990 UPC represented the first effort to bring elective share law broadly into line with the partnership theory of marriage. That theory suggests that, if the surviving spouse so elects, the survivor is entitled to force a transfer of the decedent’s assets sufficient to equalize the marital assets. In determining which portion of a decedent’s estate is marital, the 1990 UPC uses an approximation system. The 1990 UPC, however, suffered from problems of presentation. It presented the approximation system in a rather indirect and opaque form. The original Article recommended changes that would cure that defect in presentation. The primary benefit of the recommended changes was to make the statute, as revised, present the approximation system in a clear and transparent form. As reported in the Addendum, the Uniform Law Commission revised the UPC elective share in 2008 so that it now presents the elective share in a more direct and hence more understandable form than it was in its earlier formulation.