(a) If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of the estate. The elective share shall be the lesser of:
(1) All of the estate of the deceased reduced by the value of the surviving spouse’s separate estate; or
(2) One-third of the estate of the deceased.
(b) The “separate estate” of the surviving spouse shall include:
(1) All property which immediately after the death of the decedent is owned by the spouse outright or in fee simple absolute;
(2) All legal and equitable interests in property the possession or enjoyment of which are acquired only by surviving the decedent; and
(3) All income and other beneficial interests:
a. Under a trust;
b. In proceeds of insurance on the life of the decedent; and
c. Under any broad-based nondiscriminatory pension, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer.
(c) If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.
(Acts 1982, No. 82-399, §2-201.)
Notes of Decisions
Cited in
13
cases, 1986–2016 · leading case:
Russell v. Russell, 758 So. 2d 533 (Ala. 1999).
Russell v. Russell, 758 So. 2d 533 (Ala. 1999).
· cites it 6× “See Ala.Code 1975, § 43-8-70 (providing that a surviving spouse may claim an elective share of a decedent's estate).”
Nichols v. Barnette, 528 So. 2d 322 (Ala. 1988).
· cites it 8× “Sealy filed a petition for removal to the Circuit Court of Perry County and a petition for an elective share under Ala.Code 1975, § 43-8-70. About the same time, counsel for Mrs.”
Persons v. Persons, 10 So. 3d 610 (Ala. Civ. App. 2008).
· cites it 2× “Code 1975, § 43-8-90, or, alternatively, requesting an elective share, pursuant to Ala.Code 1975, § 43-8-70; she also requested a homestead allowance, a spousal exemption, and a family allowance.”
Garrard v. Lang, 489 So. 2d 557 (Ala. 1986).
“Gar-rard has a right of election, § 43-8-70; and she may claim a homestead allowance, § 43-8-110; an exempt property allowance, § 43-8-111; and a family allowance, § 43-8-112.”
Killough v. Flowers, 843 So. 2d 770 (Ala. Civ. App. 2002).
· cites it 2× “Also on September 21, 1999, nine days before Margaret filed her notice of appeal from the trial court’s June 3, 1999, judgment, Margaret, as William’s purported surviving spouse, filed a petition in the probate court dissenting from the will and seeking to be awarded an elective…”
Garrard v. Lang, 514 So. 2d 933 (Ala. 1987).
· cites it 2× “The amounts to be distributed are stated clearly in the statutes: one-third of the estate for the elective share, Alabama Code (1975), § 43-8-70; $3,500.00 for exempt property, § 43-8-111; and $6,000.”
Moss v. Horton, 544 So. 2d 898 (Ala. 1989).
“” While it is true that in the new probate code the legislature abolished the estates of dower and curtesy, it provided for an “elective share” (§ 43-8-70) that gives the surviving spouse a one-third share of the real and personal property in lieu of the widow’s right of dower…”
Reynolds v. Reynolds, 837 So. 2d 847 (Ala. Civ. App. 2002).
· cites it 7× “[7] The children argue, however, that "the estate" referenced in § 43-8-70 is one that is determined only after the deduction of estate taxes, which are a function of a federally prescribed "taxable estate" that includes both probate and non-probate property.”
Sheffield v. Buxton, 547 So. 2d 432 (Ala. 1989).
“Ida Buxton, his widow, elected to dissent from the will under § 43-8-70, Ala. Code 1975. Gill and Stewart conveyed their interest in their father’s estate to Willie Sheffield by deed.”
Ala. Code § 43-8-70(a): 3 cases
Reynolds v. Reynolds, 837 So. 2d 847 (Ala. Civ. App. 2002).
“[7] The children argue, however, that "the estate" referenced in § 43-8-70 is one that is determined only after the deduction of estate taxes, which are a function of a federally prescribed "taxable estate" that includes both probate and non-probate property.”
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