An elective share election form is the document a surviving spouse files with the probate court to claim a legal share of a deceased spouse’s estate. Most states give a widow or widower the right to take a set percentage of the estate, even if the will left them little or nothing. However, that right is not automatic. In most cases, you must file a written election within a short window, or the right disappears. This guide walks through what the form must say and how families typically file it.
When and Why You Need a Elective Share Election Form
Almost every state outside the community property system protects a surviving spouse from being disinherited. The protection is called an elective share, a forced share, or a spousal share. It means a spouse can set aside the will’s gift and take a statutory percentage instead. For example, a will might leave the spouse $10,000 while giving the rest to children from a first marriage. The elective share lets that spouse claim more.
The protection only works if you claim it. Courts do not calculate it for you. As a result, the elective share election form is the trigger. Without it on file, the estate is distributed exactly as the will says.
Families usually consider filing when the will leaves the spouse less than the statutory share, when most assets sit in a revocable trust or in joint accounts, or when the spouse was left only a life estate in the house. In some states, an elective share election form also reaches non-probate assets like payable-on-death accounts. That is a major reason to look at it carefully rather than assume the will is the whole picture.
What to Include (and What to Get Right)
The form itself is short. The details are what matter. At a minimum, a complete elective share election form names the deceased spouse and date of death, the probate court and county, the estate case number, and the surviving spouse’s full legal name and address. It must state plainly that the spouse elects to take the elective share under the state statute, and it should cite the exact statute section.
Two more items get missed often. First, the form should confirm the filer’s status as the surviving spouse at the time of death. Second, it usually needs a certificate of service showing that copies went to the personal representative and to every interested party. Typically the court will not treat the election as effective until service is documented. Percentages and deadlines vary a great deal, so check your own state’s rule before you file.
| State | Elective share amount | Deadline to file the election | Statute |
|---|---|---|---|
| Florida | 30% of the elective estate | Earlier of 6 months after service of notice of administration, or 2 years after date of death | Fla. Stat. 732.201 and 732.2135 |
| New York | Greater of $50,000 or one-third of the net estate | 6 months after letters issued, and no later than 2 years after death | EPTL 5-1.1-A |
| Pennsylvania | One-third of the elective estate | Earlier of 6 months after death, or 6 months after the will is probated | 20 Pa. C.S. 2203 and 2210 |
| Ohio | One-half if no children or one child; one-third if two or more children | 5 months after the initial appointment of the executor | Ohio Rev. Code 2106.01 |
| Delaware | $50,000 minus certain transfers | Earlier of 6 months after death, or 60 days after the estate inventory is filed | 12 Del. C. 901 |
Some states use a sliding scale tied to the length of the marriage, a model drawn from the Uniform Probate Code. A one-year marriage may yield a very small percentage. A marriage of fifteen years or more may yield the full 50%. Check your state’s current code language before you assume a number.
Sample Template You Can Adapt
Below is a plain-language sample showing the parts most courts expect. If your county publishes an official fillable form, use that one instead, since clerks often reject substitutes.
Sample template – adapt to your state and your situation. This is an informational sample, not legal advice.
IN THE [Probate/Surrogate’s/Orphans’] COURT OF [County], [State]
In the Estate of: [Full Name of Deceased Spouse], Deceased
Case/File No.: [Estate Case Number]
SURVIVING SPOUSE’S ELECTION TO TAKE ELECTIVE SHARE
I, [Your Full Name], state the following under oath:
1. I reside at [Your Street Address, City, State, ZIP].
2. [Full Name of Deceased Spouse] died on [Date of Death] while domiciled in [County], [State].
3. I was lawfully married to the decedent on the date of death, and I am the surviving spouse.
4. The decedent’s will dated [Date of Will] was admitted to probate in this Court on [Date Admitted], and [Name of Personal Representative] was appointed as [Executor/Personal Representative/Administrator] on [Date of Appointment].
5. I hereby elect to take my elective share of the decedent’s estate under [exact statute section, e.g., Fla. Stat. 732.201], and I renounce any provision of the will inconsistent with that election.
6. I understand this election may affect gifts made to me under the will and may affect other beneficiaries.
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7. This election is filed within the time allowed by [exact statute section].
WHEREFORE, I respectfully ask the Court to determine and distribute my elective share as provided by law.
Signed: ____________________________
[Your Full Name], Surviving Spouse
Date: [Date]
Phone: [Your Phone] Email: [Your Email]
STATE OF [State], COUNTY OF [County]
Sworn to and subscribed before me this [Day] day of [Month], [Year], by [Your Full Name], who is personally known to me or produced [Type of ID] as identification.
____________________________
Notary Public My commission expires: [Date]
CERTIFICATE OF SERVICE
I certify that a copy of this election was served on [Name of Personal Representative], counsel of record, and all interested persons at the addresses on file, on [Date], by [Method of Service].
____________________________
[Your Full Name]
How to Make It Valid in Your State
Most states require the surviving spouse to sign the elective share election form personally, in front of a notary. A few also want witnesses. If the spouse cannot sign because of incapacity, an agent under a power of attorney or a court-appointed guardian may be able to file, but in many states that requires a judge’s permission first. Ask the clerk before you assume.
Filing happens with the probate clerk in the county where the estate is open. Bring the original plus copies, and expect a filing fee in some counties. Keep a stamped copy for your records. Then serve the personal representative and file proof of that service.
One more practical point. Filing the election starts a valuation process, not a payout. The court or the personal representative must calculate the elective estate, which may include trust assets, joint accounts, and some lifetime gifts. That accounting takes time, and disputes are common. Many families in this position work with a probate attorney because the math drives the result.
Frequently Asked Questions
Can I file the election and then change my mind?
Some states allow withdrawal of an elective share election form before a set point, often before the court enters an order determining the share. Others treat it as final once filed. Check your state’s statute, or ask the probate court clerk what the local practice is.
Does the elective share reach assets outside the will?
In many states, yes. Modern statutes count an “augmented estate” that can include revocable trusts, jointly held property, and payable-on-death accounts. For example, Florida’s elective estate is broad by design. However, some states still limit the share to probate assets only.
What if my spouse and I signed a prenuptial agreement?
A valid prenuptial or postnuptial agreement can waive the elective share entirely. Courts generally look at whether the waiver was voluntary and whether assets were disclosed. If an agreement exists, have a licensed attorney review it before you file anything.
Where to get real help, free or low-cost
You do not have to figure this out alone, and you do not need to buy anything to get started. Your state’s probate court usually has a self-help desk, and free legal aid can walk you through the next steps.
- Your state probate (or surrogate’s) court: search “[your state] probate court self-help” for free forms and instructions.
- Free legal aid: lawhelp.org — find free and low-cost legal help in your state.
- Eldercare and benefits help: eldercare.acl.gov — connects families with local support.
Sources & How to Verify
The information on this page is drawn from official government and court sources. Estate, probate, and tax rules change, so always confirm the exact figure with your state’s court, statute, or a licensed attorney.
- IRS — Estate Tax: irs.gov — federal estate-tax rules and exemption
- Find free legal help: lawhelp.org — free and low-cost legal aid in your state
- Cornell Legal Information Institute: law.cornell.edu/wex — plain-English legal definitions
- Your state probate code & court self-help portal: search “[your state] probate code” and “[your state] probate court self-help” for the exact law and forms
Content last reviewed September 2026. If you notice outdated information, please contact us.
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Informational only — not legal or tax advice. Wills Probate Guide is an independent educational resource, not a law firm, tax advisor, or financial planner, and this page does not provide legal or tax advice. Estate, probate, and tax rules vary by state and change over time, so always verify the exact rule with your state’s probate code, your local probate court’s self-help portal, or a licensed attorney. For urgent matters like an active probate or a tax deadline, contact a licensed attorney in your state right away.