Spousal Elective Share in Alabama

Kevin R. Garrison (Alabama Law Review Senior Articles Editor, University of Alabama School of Law) has recently published his comment entitled The Ins and Outs of the Alabama Elective Share, 58 Ala. L. Rev. 1161 (2007).

Here is the introduction to his comment:

The spousal elective share, or forced share, is a doctrine designed to protect the rights of a surviving spouse. The basic premise, although it varies wildly in detail across the country, is that a spouse can either choose to take under the decedent’s will or choose to take a fractional share (often one-third) of the decedent’s estate-but they cannot choose both. It is unclear exactly how often the elective share is used in Alabama since the vast majority of records are only kept at the county level and few cases make it to a court with published opinions. Additionally, most married partners provide substantial portions of their estates to the survivor, and it appears that spousal disinheritance does not occur frequently.

It is important to note that although most statutes dealing with the rights of surviving spouses are now phrased in gender-neutral terms, the effects of these statutes are not always gender-neutral. Women are much more likely to be the surviving spouse due in part to the fact that, on average, women in Alabama live over six years longer than men and tend to marry men older than themselves. On top of this, men in Alabama earn more than women on average and hold more property titled in their names. This Comment will trace the development of Alabama’s statutory treatment of the rights of the surviving spouse, examine how Alabama courts have construed such statutes, and examine potential mediating doctrines to ameliorate the harsh deficiencies of the elective share in Alabama.