Taxation & Estate Planning

Refuse or Lose: The Doctrine of Election

By Joel A. Schoenmeyer

Robert S. Held has a nice article in this month's Illinois Bar Journal (registration required -- but it's here) regarding the doctrine of election. What is the doctrine of election? According to the author, it's a "common law doctrine... which prevents a beneficiary from accepting benefits under a will and then challenging that same document." So, if you're left $5,000 under your dad's Will (with the rest going to your ugly stepsisters), you can't accept the $5,000 and then contest the Will. It's an either/or proposition. Mr. Held also indicates that the doctrine probably applies to bequests under a trust as well as bequests under a Will.

Putting on my probate litigation hat, the above makes me think about new ways to deal with potential Will contests. Let's say you represent Son (who is left 99% of Mom's estate and who is her executor) -- Daughter is left only 1%, and may challenge the Will. Upon Mom's death, get in touch with Daughter ASAP and try to give her the 1% to which she's entitled. If she accepts, then you don't have to worry about a Will contest.

Full post as published by Death and Taxes Blog on July 27, 2010 (boomark / email).