question.jpgIn Trusts and Estates

What is a forced share?

In most states, the probate code includes laws which protect a spouse from being disinherited, either accidentally (where you got married and simply forgot to change your will) or on purpose (where you intentionally kept your spouse out of your will). In fact, these laws even protect a spouse who is included in a will but is given a very small inheritance compared to the deceased’s overall probate estate.

In some states, where a will does not include the deceased’s spouse, the entire will is deemed invalid and the situation is treated as if the person died without leaving behind a legally valid will (i.e., the state’s intestacy statutes will be applied to distribute the property). However, most states only deem part of the will to be invalid, and give the spouse an option to take a predetermined amount of the estate. This is known as a forced share - the actual amount varies from state to state, but may be a fixed percentage of the entire estate, a set dollar amount, a percentage of the estate that changes based on how long they were married, etc.

The way this works in practice is that within a specified amount of time (generally stated in the probate code as something like within nine months of when the other spouse died) the spouse must make an election to either take the forced share or, alternatively, to take whatever inheritance is included in the will. Where there is no inheritance in the will at all, the decision is obviously an easy one. However, where there is some inheritance in the will, the spouse will usually compare that to the forced share and elect to take whichever is higher. If the spouse does not make an election within the time specified by the probate code, he or she loses the right to claim the forced share.

Most states are not generally as protective when it comes to children. Thus, if someone specifically decides to disinherit a child and keep them out of the will, that child cannot take a forced share the way a disinherited spouse could. However, most states do try to protect against accidental disinheritance. A child who is accidentally omitted from a will is known as a pretermitted heir, and this includes children who the deceased did not known about, inadvertently forgot about, or mistakenly believed to be dead. While each state has its own law regarding the specific qualifications necessary for a child to be deemed a pretermitted heir, the general requirement is the child must have been born after the will was executed (although some states may allow a child born before the will’s execution to be deemed a pretermitted heir). Where it is determined that a child is a pretermitted heir who was mistakenly left out of the will, that child is entitled to take a forced share similar to a disinherited spouse.

In many states, the law includes specific situations where a child will not be entitled to such a forced share. One such situation is where there is evidence that the deceased intended to keep the child out of the will (in which case, the child is not a pretermitted heir, but was intentionally disinherited). Other situations that might appear in such state statutes would include where the will contains a general gift to “all my children,” or where the entire estate is left to the child’s other parent.