Elective Shares and Marital Property

Raymond C. O’Brien (Professor of Law, Columbus School of Law) recently published his article entitled Integrating Marital Property Into a Spouse’s Elective Share, 59 Cath. U. L. Rev. 617 (2010).  An excerpt from the introduction is below:

First, this Article begins with history, as this forms the basis of elective-share law. It is necessary to begin with the historical basis of a spouse’s right to support, and then proceed to examine how and why a spouse obtained a share of the property acquired during marriage. Second, because a spouse’s rights at death were often very different from those that a spouse would obtain at divorce, it is necessary to explain the various judicial and statutory models adopted by the states to provide a modicum of protection to a surviving spouse at death. There are many models and it will soon become apparent why the UPC seeks to provide some uniformity to a babel of approaches. Third, this Article examines the changes that have occurred in the law of divorce, because these changes have had an impact on deciding whether the UPC has captured the trend of spousal protection now present in state divorce courts. Finally, this Article analyzes the newly revised elective-share provision in the context of what has been discussed throughout this Article. The evolution of the UPC’s revisions, the multiple state approaches mentioned, and the abundance of opinions on this important topic together prompt the conclusion that any assessment of the UPC must begin with a determination of whether the 2008 revision is reasonable in light of present circumstances. With this admonition, we begin.