What is Elective Share and How Does Georgia Treat It?

Elective share is a concept of considerable debate in Georgia.  Generally, speaking the “Elective Share” rights of a spouse is the right to inherit a certain percentage of the spouse’s estate.  Say, for example, husband wishes to completely disinherit his spouse and leave her nothing under his will.  Most states do not allow this.  The wife is entitled to an elective share of the husband’s estate.  The common amount that a spouse is entitled to inherit is 1/3 of the spouse’s estate.  In our example, the wife would be entitled to 1/3 of the value of the husband’s estate and the remainder would be distributed according to the husband’s will.

Georgia has taken a unique stance on the elective share rights of a spouse.  Under the current version of the state statute, one spouse can completely disinherit another spouse.   That being said, Georgia does not have a set elective share amount. Georgia is currently the only state in the United States that allows for complete disinheritance.  However, this harsh result has been mitigated by separate spousal and minor child rights.  Georgia recognizes a concept of a “Year’s Support”.  A spouse or minor child or a decedent can petition the probate court for a Year’s support.  This is more akin to establishing oneself as a creditor or the estate.  Plainly stated, the spouse or minor child petitions the court for an amount of support from the funds or assets of the estate, before the funds are distributed under the testator’s will.  The wife and minor child are entitled to this Year’s Support ahead of many of the other creditors of the estate.  This is a very powerful right and effectively accomplishes what the Elective Share laws of other states intend.

Jason Mance Gordon




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