TAKING AGAINST THE WILL
Back to GlossaryDefinition
Surviving spouse’s election to receive a share of estate as determined by state spousal share laws rather than by decedent’s last will.
Summary
Taking against the will is a legal protection that allows a surviving spouse to reject what they were left in their deceased spouse's will and instead claim a larger share of the estate as guaranteed by state law. This prevents a spouse from being completely disinherited or left with an unfairly small portion of the marital estate. The surviving spouse can compare what the will provides versus what state law guarantees, and choose whichever option gives them more assets.
Usage Context
This concept is crucial when studying estate planning, spousal rights, probate law, and understanding how state laws protect surviving spouses from being unfairly disinherited through wills.
Common Confusions
- Thinking this applies to all family members when it's specifically for spouses
- Confusing this with community property laws
- Believing the surviving spouse automatically gets this share without having to elect it
- Assuming the percentage is the same in all states
