Most non-community-property states protect a surviving spouse from being effectively disinherited by giving them the right to 'elect against' the will and instead claim a statutory minimum share of the deceased spouse's estate — the exact percentage typically scales with the length of the marriage in states following the Uniform Probate Code approach, while other states use a flat fraction such as one-third or one-half. Community property states generally do not need an elective share for community assets because the surviving spouse already owns half of that property outright, though some still provide protection for separate property.

A significant complication is what counts toward the elective-share calculation: many states expand the relevant estate beyond just probate assets to include certain non-probate transfers made during the marriage — such as revocable trust assets, jointly held property, and some lifetime gifts — specifically to prevent a spouse from defeating the elective share by moving assets outside probate before death. The surviving spouse typically must affirmatively file an election within a fairly short statutory window after the will is admitted to probate, or the right can be waived.

Juricratic models the elective-share calculation as a distinct dial from ordinary probate distribution, since it depends on both the applicable percentage formula and the scope of assets counted toward it, and shows how the surviving spouse's guaranteed minimum shifts as assumptions about included non-probate transfers change.

Estate litigators representing a surviving spouse evaluate both the will's actual bequest and the full scope of assets includable in the elective-share calculation, since non-probate transfers made during the marriage can substantially increase the guaranteed minimum; attorneys for the estate, conversely, work to show such transfers were legitimate and excludable, making the augmented-estate calculation itself a frequent point of contention.