What is a surviving spouse’s right of election?
In West Virginia, a surviving spouse’s right of election is the right of a surviving spouse to receive a share of their deceased spouse’s estate, as opposed to the distribution of property according to the terms of a will or the state’s intestacy laws. In most cases, a surviving spouse may elect to take a statutory share of their deceased spouse’s estate, regardless of the terms of any will the deceased spouse may have made. This right is provided for in the West Virginia probate code. The amount a surviving spouse is entitled to receive depends on a number of factors, including whether or not children of the deceased spouse are living, and the size of the estate. Generally, the surviving spouse is entitled to receive a certain percentage of the estate, which is calculated based on the marital relationship, the number of children, and other factors. This percentage can range from up to 1/2 of the estate if there are no children from the deceased spouse, to 1/3 of the estate if there are children. In addition to the right of election, a surviving spouse may be entitled to other types of benefits, such as homestead rights, exempt property, and life estate rights. These benefits are provided for under the terms of the West Virginia probate code. It is important to work with an experienced estate planning lawyer in order to understand your rights as a surviving spouse in West Virginia.
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