Connecticut's elective share (CGS 45a-436): a surviving spouse's right to a life estate in one-third of property passing under the will. Rules and deadlines.

Surviving Spouse Rights in Connecticut: The Elective Share

A surviving spouse in Connecticut may reject what the will provides and instead claim a statutory share: a life estate in one-third of all property passing under the deceased spouse’s will. This right is established by CGS 45a-436 and cannot be defeated by any testamentary disposition.

The elective share (also called the statutory share) is a life estate of one-third in value of all real and personal property passing under the will, calculated after payment of debts and charges against the estate (CGS 45a-436(a)).

Two features distinguish Connecticut’s approach:

It is a life estate, not an outright share. The surviving spouse receives the right to use and benefit from one-third of the estate’s value during their lifetime. At the surviving spouse’s death, that property passes according to the deceased spouse’s will. This is different from many other states, where the elective share gives the surviving spouse outright ownership.

It applies to property “passing under the will.” The statute reaches property that the deceased spouse controlled through the will. It does not reach non-probate assets such as jointly held property, life insurance proceeds paid to a named beneficiary, retirement accounts with designated beneficiaries, or revocable trust assets. This is a significant limitation.

How to Elect

The surviving spouse (or the conservator or guardian of the surviving spouse’s estate, with Probate Court approval) must file a written notice of intention to take the statutory share with the Probate Court within 150 days after the mailing of the decree admitting the will to probate (CGS 45a-436(c)).

This deadline is strict. If the surviving spouse does not file within 150 days, the right to elect is permanently barred.

Interaction with Bequests Under the Will

If the deceased spouse left something to the surviving spouse in the will, that bequest is presumed to be in lieu of the statutory share (CGS 45a-436(b)). The surviving spouse must choose: take what the will provides, or reject it and elect the statutory share.

The only exception is when the will itself expressly states, or clearly shows, that the bequest was intended to be in addition to the statutory share. This is uncommon.

Property Included in the Calculation

The statutory share is calculated based on all property, real and personal, legally or equitably owned by the deceased spouse at death and passing under the will, after debts and charges. This includes:

Real estate devised by the will
Bank accounts, investments, and personal property bequeathed by the will
Business interests disposed of by the will

It does not include:

Jointly held property that passes by right of survivorship
Life insurance, annuities, and retirement accounts with named beneficiaries
Property in a revocable trust (unless the trust is funded by pour-over from the will)
Property transferred during the deceased spouse’s lifetime

Because Connecticut’s elective share is limited to property passing under the will, a spouse who transfers most assets into a revocable trust during life can effectively reduce the pool of property subject to the election. This is a well-known planning technique, though it raises ethical and litigation considerations.

The fiduciary administering the estate (or, at the Probate Court’s discretion, court-appointed distributors) sets out the statutory share (CGS 45a-436(e)). The share may consist of personal property, real property, or both.

If the Probate Court has allowed a support allowance from the estate under CGS 45a-320, the surviving spouse does not take the statutory share until the support allowance period expires (CGS 45a-436(d)).

When a Spouse Might Elect Against the Will

A surviving spouse would consider electing if the will leaves them less than the value of a life estate in one-third of the probate estate. Common scenarios:

The deceased spouse disinherited the surviving spouse entirely
The will leaves the surviving spouse a small specific bequest while distributing the bulk of the estate to children from a prior marriage
The will creates a trust for the surviving spouse on terms the spouse considers too restrictive

The election is a financial calculation. Compare the value of what the will provides against the value of a life estate in one-third of the net probate estate. If the election produces more value, elect.

Waiver by Agreement

The elective share can be waived by a written contract made before or after marriage (CGS 45a-436(f)). This is the legal basis for prenuptial and postnuptial agreements that address inheritance rights.

For a waiver to be effective, it must be a written contract and must have been intended as a provision in lieu of the statutory share. The enforceability of the agreement itself is governed by contract law and, for prenuptial agreements, by the Connecticut Premarital Agreement Act.

Abandonment

A surviving spouse who abandoned the deceased spouse without sufficient cause, and continued the abandonment until the time of death, forfeits both the statutory share and any intestate share (CGS 45a-436(g)). “Abandonment” is a fact-intensive inquiry. Mere separation or living apart does not automatically constitute abandonment, and “sufficient cause” (such as fleeing domestic violence) is a defense.

These are separate protections. The pretermitted spouse statute (CGS 45a-257a) applies when the surviving spouse married the testator after the will was executed and was not provided for. The elective share applies to any surviving spouse, regardless of when the marriage occurred relative to the will’s execution.

A spouse who receives a share under the pretermitted spouse statute may not also elect the statutory share (CGS 45a-257a(c)). They are alternative remedies.

Planning Implications

For the spouse with the larger estate: understand that your surviving spouse has a right to elect against your will. If your estate plan deliberately leaves your spouse less than the statutory share, discuss a postnuptial agreement, or structure your assets to minimize the probate estate subject to election.

For the surviving spouse: the 150-day deadline is firm. Consult with an attorney promptly after the will is admitted to probate so you can evaluate whether election makes financial sense before the deadline passes. The calculation requires an understanding of the estate’s assets, debts, and the present value of a life estate, which depends on the surviving spouse’s age.

For the probate process that triggers the 150-day election window, see our step-by-step probate guide. For Connecticut will requirements, see wills in Connecticut.