Court Holds that Selling Specifically Devised Reality to Satisfy Estate Debts Did Not Satisfy the Elective Share

The decedent’s will left a specific bequest of the decedent’s interest in a condominium as a tenant in common to the decedent’s surviving spouse. The decedent’s estate was insolvent, and the court gave the decedent’s daughter from a previous marriage, acting as the executor, permission to sell the condominium to pay the estate’s debts. Under Delaware law, a surviving spouse is entitled to one-third of the deceased spouse’s “elective share.” The law defines elective share as the deceased spouse’s federal gross taxable estate, regardless of whether the estate is subject to federal estate tax.

The Delaware Chancery Court in In re Estate of Bernstein, 17 A.3d 1172 (Del. Ch. 2011) affirmed a master’s report that stated that the executor could not use the decedent’s value in the condominium to satisfy the elective share right because the surviving spouse did not receive any of its value.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.