The Inequity of Elective Shares in Second Marriages

Elective share statutes, the modern successors to the historical doctrines of dower and curtesy, serve as a vital legal safety net designed to prevent a decedent from intentionally disinheriting a surviving spouse.^[1] By forcing the decedent’s estate to distribute a specific share to a spouse who has been omitted from a will, these statutes protect against the rise of non-probate transfers and inter vivos gifts that might otherwise leave a survivor destitute.^[2]   Since 1990, the Uniform Probate Code (UPC) has grounded this protection in a “partnership theory” of marriage,^[3] which posits that spouses contribute to an economic partnership through both financial and non-financial labor.^[4] Under this framework, the survivor is entitled to half the “fruits of the partnership.”^[5]

In the context of long-term first marriages, this regime generally achieves its goal of promoting equity.^[6] These laws reflect the reality of family wealth accumulation, particularly in traditional settings where one spouse, often the wife, may have sacrificed career advancement or income to provide domestic and caregiving labor.^[7]   In such cases, it is equitable for the survivor to receive one-half of the assets accumulated over the course of the marriage.  However, applying this same mechanical logic to second marriages often produces outcomes that are inconsistent with the principles of partnership and equity.^[8]

The modern elective share regime frequently fails to account for the unique economic realities of remarriage, especially post-widowhood unions occurring later in life.^[9]  As remarriage rates rise, with 23% of married individuals having been married previously as of 2013,the need for reform has become imperative.^[10]  The primary failure lies in the UPC’s fifteen-year “approximation schedule,” which gradually increases the percentage of the estate subject to the elective share until it reaches 50%.  While this system intends to reflect marital property, it often mischaracterizes separate, premarital assets as partnership property.  Because spouses in late-life remarriages are often retired, they rarely accumulate significant new wealth during the union; instead, the economic foundation consists of assets from earlier partnerships.^[11]  Consequently, a surviving spouse may receive a windfall of nearly half the estate even if no wealth was generated during the marriage.^[12]

These legal mechanics often trigger intense family conflict, particularly between surviving spouses and children from the  decedent’s prior marriage.^[13]  Research indicates that the vast majority of elective share disputes involve this specific friction, highlighting a clash between the policy goal of protecting a spouse and the contractual rights of children as third-party beneficiaries.^[14]  For example, when a decedent and a first spouse create a joint and mutual will agreeing to leave assets to their children, that contract directly conflicts with the statutory rights of a second spouse.^[15]  While courts have ruled inconsistently, some favoring spousal protection on public policy grounds and others upholding the contract theory of estoppel,^[16] the resulting uncertainty incentivizes litigation and disrupts the family fabric, making the step-family dynamic even more challenging to navigate.^[17]

This doctrinal failure also carries equity concerns, as an elective share that undoes long-term estate planning may override testamentary freedom.^[18]  For example, a late-in-life remarriage can create a situation in which, even after 15 years of marriage, a husband or wife may own a significant amount of separate property and may prefer to leave property to children from a prior marriage rather than to a surviving spouse.  Spouses may have engaged in estate planning using a variety of trusts to provide for each other and then for children from prior marriages.  An elective share that undoes this estate planning may disturb the testamentary wishes of the decedent who relied on plans agreed to when both spouses were alive.^[19]  In post-widowhood remarriages that do not involve the same domestic or child-rearing sacrifices as first marriages, the public policy argument for a broad elective share is less compelling.^[20]  Without reform, the law risks perpetuating structural inequity by reallocating premarital wealth away from the family that helped build it.

While elective share statutes continue to promote fairness in long-term first marriages,^[21] their mechanical application in second marriages often undermines both equity and partnership principles. Without reform, the elective share law risks perpetuating family conflict rather than correcting it.^[22]  While premarital agreements are a critical tool for individuals with separate assets to avoid elective shares statutes, a systemic shift toward a deferred community-property elective share system would be more effective.”^[23]  By limiting the elective share to one-half of the property actually acquired during the marriage, a deferred community-property elective share system could protect spouses without disturbing testamentary intent or the rights of earlier families.^[24] This approach would reduce litigation, preserve the partnership principle by equally dividing wealth accumulation during the marriage, and ensure that spousal protection remains equitable for all marital situations.^[25]

^[1] Lawrence W. Waggoner, The Uniform Probate Code’s Elective Share: Time for a Reassessment, U. Mɪᴄʜ. J. L. Rᴇғᴏʀᴍ 37, 1, 2 (2003).

^[2] Naomi Cahn, What’s Wrong About the Elective Share “Right”?, 53 U.C Dᴀᴠɪs Lᴀᴡ Rᴇᴠ. 2087, 2097 (2020); Lᴇɢᴀʟ Iɴғᴏʀᴍᴀᴛɪᴏɴ Iɴsᴛ., https://www.law.cornell.edu/wex/nonprobate_transfer [https://perma.cc/N2TF-TUK2] (“[N]onprobate transfer is a transfer of property at death from a decedent to another without the need for a probate proceeding.”).

^[3] Waggoner, supra note 1, at 4.

^[4] Uɴɪғ. Pʀᴏʙ. Cᴏᴅᴇ, pt.2 gen.cmt. (amended 2019) (“Under this approach, the economic rights of each spouse are seen as deriving from an unspoken marital bargain under which the partners agree that each is to enjoy a half interest in the fruits of the marriage, i.e., in the property nominally acquired by and titled in the sole name of either partner during the marriage (Other than in property acquired by gift or inheritance.”)

^[5] Id.

^[6] Waggoner, supra note 1, at 18, 20 (noting that the median length of first marriages ending in the death of a spouse is 46.3 years; meaning that most, if not all, property accumulated over the course of the marriage is likely to be marital in character).

^[7] Waggoner, supra note 1, at 20.

^[8] Scholars have argued that the current iteration of the UPC does not promote partnership theory in certain cases.  See, e.g., Alan Newman, Incorporating the Partnership Theory of Marriage into Elective-Share Law: The Approximation System of the Uniform Probate Code and the Deferred-Community-Property Alternative, 49 Eᴍᴏʀʏ L.J. 487, 488  (2000); Naomi Cahn, What’s Wrong About the Elective Share “Right”?, 53 U.C Davis L. Rev. 2087, 2092 (2020) (“The cases addressed in this Article potentially undermine the goal of full adherence to the partnership theory, at least in subsequent marriages.”).

^[9] Cahn, supra note 2, at 2097.

^[10] A.W. Geiger & Gretchen Livingston, 8 Facts About Love and Marriage in America, Pᴇᴡ Rsᴄʜ Cᴛʀ. (Feb. 13, 2019), https://www.pewresearch.org/fact- tank/2019/02/13/8-facts-about-love-and-marriage/ [https://perma.cc/JS8A-XT2T].

^[11] Waggoner, supra note 1, at 18, 22 (noting that the median length of post-divorce remarriages and post-widowhood remarriages is 35.1 years and 14.4 years, respectively).

^[12] See  Uɴɪғ. Pʀᴏʙ. Cᴏᴅᴇ,, § 2-203 Alternative A (amended 2019).

^[13] Cahn, supra note 2, at 2106.

^[14] Id.

^[15] Randall J. Gingiss, Second Marriage Considerations for the Elderly, 45 S.D. L. Rᴇᴠ. 469, 477 (2000).

^[16] See Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993) (demonstrating the subordination of a surviving spouse’s statutory share of an estate to claims of third-party beneficiaries of previously executed mutual wills).  But see Via v. Putnam, 656 So. 2d 460 (Fla. 1995); Shimp v. Huff, 315 Md. 624, 641, 556 A.2d 252, 261 (1989).

^[17] Susan N. Gary, The Oregon Elective Share Statute: Is Reform an Impossible Dream?, 44 Wɪʟʟᴀᴍᴇᴛᴛᴇ L. Rᴇᴠ. 337, 343 (2007).

^[18] Cahn, supra note 2, at 2089.

^[19] Id.

^[20] Id. at 2110.

^[21] Waggoner, supra note 1, at 18.

^[22] Gingiss, supra note 15, at 478.

^[23] Newman, supra note 8, at 8.

^[24] Id.

^[25] Id. at 96.