under this alternative to the partnership theory, one
spouse is entitled to the support of the other spouse.
Does the elective share perfectly “convert” marriage under a separate
property regime into an economic partnership at death?
Community property is an economic partnership at death
Elective share can fail the test (see example below)
Does SS get one-half of all the assets of the marriage?
What happens if the poor spouse dies first?
(see case 2 page 523)
H owns $500,000 in acquisitions from his earnings and W owns
$100,000 from her earnings. If W dies first, she can dispose of only her
$100,000, and in most states H will have an elective share in that. If the
couple lived in a community property jurisdiction, W could dispose of
her half of the $600,000 total by will.
If a wife dies before her husband, she cannot dispose of any of
the marital partnership property titled in her husband’s name;
elective share theory fails this test!
: Separate Property States –
this is the default jurisdiction for