An Oklahoma surviving spouse has a right to elect to take an elective share in the deceased spouse’s estate. In Oklahoma, the rules governing the spousal elective share are found in 84 OK Stat § 84-44.
What Is the Elective Share In Oklahoma?
The surviving spouse right to an elective share prevents one spouse from devising more than one-half of the property acquired by joint industry during the marriage to anyone other than the surviving spouse. Oklahoma law provides that the surviving spouse can elect to take the same share of the decedent’s property that would have been received if the decedent had died intestate (if decedent had died without a valid will under Oklahoma law), instead of taking the property that the decedent devised to the surviving spouse under the will.
What Is the Purpose Of the Elective Share?
The purpose of the Oklahoma elective share is to prevent a surviving spouse from being disinherited or written out of the decedent’s will. The elective share is a protection for the surviving spouse.
If the surviving spouse is disinherited or is left only a small portion of the estate, the surviving spouse can claim the Oklahoma spousal elective share instead of accepting the assets (or lack of assets) left under the will.
How Does the Surviving Spouse Claim an Elective Share?
An Oklahoma surviving spouse must elect to take an elective share in a separate written document (a qualified disclaimer). The disclaimer is filed with the Oklahoma probate court before the plan for final distribution of the estate is approved by the court.
Section 84 OK Stat § 84-44
Section 84 OK Stat § 84-44 governs the surviving spouse’s elective share in Oklahoma and states:
Every estate in property may be disposed of by will except that a will shall be subservient to any antenuptial marriage contract in writing. In addition, no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than an undivided one-half (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture. No person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.
The spouse of a decedent has a right of election to take the one-half (1/2) interest in the property as provided in paragraph 1 of this subsection in lieu of all devises, legacies and bequests for the benefit of the spouse contained in the last will and testament of the decedent.
If the surviving spouse desires to make the election provided in paragraph 2 of this subsection to take the property specified therein in lieu of all devises, legacies and bequests for the benefit of the surviving spouse contained in the last will and testament of a decedent, then the surviving spouse shall make such election affirmatively in writing, which writing shall be filed in the district court in which the estate of the decedent is being administered on or before the final date for hearing of the petition for final distribution of the estate. The court clerk shall immediately mail a copy of such election to the personal representative of the estate and to all attorneys of record of the estate. Such written election of the surviving spouse shall be in the form of a writing separate from all other pleadings and documents filed in the district court in which the estate is being administered. Failure of the surviving spouse to substantially comply with the provisions of this subsection shall render the attempted election by the surviving spouse void and of no force or effect; provided that such failure shall not prohibit the surviving spouse from making a subsequent election within the allotted time period, which substantially complies with this subsection.
The right of election of the surviving spouse provided for in paragraph 2 of this subsection is personal to the surviving spouse and may be exercised only during the lifetime of the surviving spouse. However, if there has been a guardian or conservator duly appointed by a court of competent jurisdiction, and such court has judicially determined the surviving spouse to be incompetent, then such guardian or conservator may make the election on behalf of the surviving spouse, but only if the same is approved by the court having jurisdiction over such guardian or conservator. Further, a certified copy of the document or documents evidencing the appointment of such guardian or conservator for the surviving spouse, and a certified copy of the order of the applicable court approving such guardian’s or conservator’s making such election on behalf of the surviving spouse, shall be attached to the election, which shall also be in substantial compliance with the provisions of paragraph 3 of this subsection, or such election shall be void and of no force or effect. The guardian or conservator may be appointed in any state, and may have been appointed at any time prior to the expiration of the time permitted for the election to be made as provided in paragraph 3 of this subsection.
If an Oklahoma surviving spouse exercises the right to claim the elective share, the surviving spouse will not receive whatever assets are left to the spouse under the decedent’s will. Instead, the surviving spouse will receive a one-half (1/2) interest in the property as set forth by Oklahoma law.
Your Oklahoma probate attorney can help you determine whether to file for elective share or take under the will.