The Incompetent Spouse’s Election: A Pecuniary Approach

Although many state legislatures have preserved the incompetent widow’s right of election, these states have developed only general guidelines to govern such an election. These guidelines merely direct the court to act in the “best interests” of the incompetent widow. Courts of the various jurisdictions differ in their approach to determining the “best interests” of the incompetent. Most courts examine all surrounding circumstances regarding the incompetent widow’s situation, such as the intent of both the wife prior to her incompetency and of the testator, and the adequacy of the will’s provision for the incompetent widow. A minority of jurisdictions, however, rely almost exclusively on a monetary determination of whether the will or the statutory provision gives the incompetent widow the larger share of the estate.

Because incompetency in a probate setting often arises due to advanced age or accompanying senility, the difficulties posed by the incompetent widow’s election are likely to arise with increasing frequency as medical advances continue to extend the human lifespan. This development increases the need for an effective and fair means of disposing of such cases in a manner consistent with the policies underlying the incompetent’s statutory right of election. This Note argues that the minority, or pecuniary, approach provides such a solution. Part I provides a general description of the majority and pecuniary approaches. Part II discusses the reasons supporting a preference for the pecuniary approach, and Part III suggests some refinements of the pecuniary approach that will lead to fairer results and to greater internal consistency.