What the statutory elective share protects

The statutory elective share gives a surviving spouse a guaranteed portion of an estate regardless of what a will or some nonprobate transfers say. To determine that share, Alabama law generally looks beyond just assets that pass under the will. It uses an “augmented estate” concept that combines probate assets and many types of nonprobate transfers to arrive at a value from which the spouse’s share is calculated.

Which assets are normally included in the augmented estate

Under Alabama’s elective-share framework, the following categories are typically considered when calculating the augmented estate (examples shown):

• Probate estate: assets titled in the decedent’s name and passing under the will or by intestacy (real estate, bank accounts owned solely by the decedent at death).
• Revocable transfers and revocable trusts: assets the decedent could revoke or control before death (assets in a revocable living trust).
• Nonprobate benefits payable by designation: life insurance proceeds, retirement plan benefits, or transfer-on-death (TOD) or payable-on-death (POD) accounts if payable to someone other than the surviving spouse.
• Assets held in joint tenancy or with rights of survivorship: to the extent those assets are treated as part of the decedent’s economic estate (e.g., joint accounts where the decedent’s contribution is significant).
• Gifts and transfers made shortly before death: interdicted transfers intended to defeat the spouse’s rights or made within a statutory look-back period; courts may include these in the augmented estate.
• Other credited transfers: certain lifetime transfers for which the decedent retained benefit or control.

These categories reflect how Alabama treats many nonprobate items when protecting a spouse’s statutory right. For statutory language and detail, see the Code of Alabama provisions governing the surviving spouse’s rights (Code of Ala. Title 43 provisions). (See: Code of Alabama, Title 43—Wills, Trusts, and Administration of Estates.)

How assets are valued (date and valuation method)

Valuation typically uses the fair market value at the decedent’s date of death. That means:

• Publicly traded securities: use closing market price on date of death.
• Real estate: use the fair market value at death (appraisal).
• Business interests: use a business valuation as of the date of death.
• Life insurance and retirement accounts: use the death benefit or plan value paid to beneficiaries.
• Accounts with joint owners: courts allocate value between the decedent and surviving joint owner(s) based on contributions, intent, and evidence.

If an asset was sold or transferred at or near death, or if the estate uses an alternate valuation under applicable rules, that evidence can affect the valuation. In many situations, Alabama follows the date-of-death valuation as the default.

Deductions and credits that reduce the augmented estate

After the augmented estate is assembled and valued, the law typically allows certain deductions before computing the spouse’s share. Common deductions include:

• Debts of the decedent and funeral expenses.
• Administration expenses and taxes arising because of the death.
• Property that passes outright to the surviving spouse (because the spouse already received that value).
• Certain prior transfers that are credited against the spouse’s share (for example, lifetime gifts to the spouse).

These deductions lower the base amount from which the statutory elective share percentage is applied.

How the elective share is calculated in practice

1. Assemble the augmented estate: combine probate assets plus included nonprobate items (revocable transfers, certain joint assets, designated-beneficiary assets, recently made transfers that should be considered).
2. Value each included item as of the date of death (use appraisals, account statements, or market prices).
3. Subtract allowable deductions (debts, expenses, items already passing to the spouse, credits for prior transfers).
4. Apply the statutory elective-share percentage to the net augmented estate to determine the spouse’s entitlement.
5. Subtract any property already received by the spouse that counts against the elective share; pay the balance from the estate’s remaining assets.

Exact percentages and specific credit rules are set by statute and by case law interpreting the statute. See Alabama statutory provisions for the controlling rules (Title 43 provisions).

Common fact patterns and how they affect valuation

Examples:

• If the decedent named a child as beneficiary of a retirement account, the full account value at death is generally included in the augmented estate and valued at the account’s death balance for elective-share purposes.
• If the decedent owned a home jointly with the surviving spouse and joint title clearly established an intent of survivorship and the spouse contributed little to its purchase, courts may still consider whether any portion of the home’s value should be included in the augmented estate based on the decedent’s economic interest.
• If the decedent placed assets in a revocable trust that the decedent could control and revoke, the trust assets are normally included and valued at the decedent’s date-of-death interest.
• Gifts made shortly before death to third parties to avoid the spouse’s share may be pulled back into the augmented estate under statutes or equitable doctrines.

When valuation or inclusion is contested

Disputes often concern:

• Whether a nonprobate asset should be included at all (e.g., was a transfer truly a gift or a retained interest?).
• Correct valuation method or date for unique assets (closely held business, rare art, family farm).
• Allocation of value for jointly held property.

Courts will consider documentary evidence, appraisals, account histories, and testimony about intent and contributions. Because technical valuation methods and contested factual issues commonly arise, parties often retain appraisers and legal counsel.

Practical steps if you are the surviving spouse or administrator

• Gather documentation: account statements, deeds, trust documents, beneficiary designations, insurance policies, retirement plan summaries, and records of large recent gifts.
• Get valuations for unusual or high-value items (real estate appraisal, business valuation, professional appraisal for collectibles).
• Identify what the spouse already received (gifts, allowances, joint-account distributions) to determine credits against the elective share.
• Consult a probate/estate attorney familiar with Alabama elective-share law to ensure correct assembly and valuation of the augmented estate and to preserve deadlines for making an election.