(a) The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the court under Alaska Stat. § 13.12.211(a). If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse’s behalf by the surviving spouse’s conservator, guardian, or agent under the authority of a power of attorney.
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Terms Used In Alaska Statutes 13.12.212

  • Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
  • Decedent: A deceased person.
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • person: includes a corporation, company, partnership, firm, association, organization, business trust, or society, as well as a natural person. See Alaska Statutes 01.10.060
  • Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
  • Probate: Proving a will
  • property: includes real and personal property. See Alaska Statutes 01.10.060
  • state: means the State of Alaska unless applied to the different parts of the United States and in the latter case it includes the District of Columbia and the territories. See Alaska Statutes 01.10.060
  • Trustee: A person or institution holding and administering property in trust.
  • writing: includes printing. See Alaska Statutes 01.10.060
(b) If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the portion of the elective share and supplemental elective share amounts due from the decedent‘s probate estate and recipients of the decedent’s nonprobate transfers to others under Alaska Stat. § 13.12.209(b) and (c) shall be placed in a custodial trust for the benefit of the surviving spouse under Alaska Stat. Chapter 13.60 (Alaska Uniform Custodial Trust Act), except as provided in (c) – (e) of this section. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. For the purposes of the custodial trust established by this subsection,

(1) the electing guardian, conservator, or agent is the custodial trustee;
(2) the surviving spouse is the beneficiary; and
(3) the custodial trust is determined to have been created by the decedent spouse by written transfer that takes effect at the decedent spouse’s death and that directs the custodial trustee to administer the custodial trust as for an incapacitated beneficiary.
(c) An incapacitated beneficiary or a person acting on behalf of an incapacitated beneficiary may not terminate a custodial trust established under (b) of this section; but if the beneficiary regains capacity, the beneficiary then acquires the power to terminate the custodial trust by delivering to the custodial trustee a writing signed by the beneficiary declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary.
(d) Expenditures by the custodial trustee of the property of a custodial trust established under (b) of this section shall be made with regard to other support, income, and property of the beneficiary and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the beneficiary must qualify on the basis of need.
(e) Upon the beneficiary’s death, the custodial trustee shall transfer the unexpended property of a custodial trust established under (b) of this section in the following order:

(1) under the residuary clause, if any, of the will of the beneficiary’s predeceased spouse against whom the elective share was taken, as if the predeceased spouse died immediately after the beneficiary;
(2) to the predeceased spouse’s heirs under Alaska Stat. § 13.12.711.
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