(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:

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Terms Used In Alabama Code 43-8-70

  • Decedent: A deceased person.
  • Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
  • Fee simple: Absolute title to property with no limitations or restrictions regarding the person who may inherit it.
  • person: includes a corporation as well as a natural person. See Alabama Code 1-1-1
  • property: includes both real and personal property. See Alabama Code 1-1-1
  • state: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Alabama Code 1-1-1
(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.
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