After 1994, an elective share trust is generally considered to be what?

• A. Not good
• B. Good under all circumstances
• C. Requires court approval to be valid
• D. Never used in estate planning

Answer: (A)

Elective share rights guarantee a surviving spouse a portion of the deceased spouse’s estate, even if the will attempts to disinherit them. An elective share trust is a device used to fund that right while keeping control over assets. After 1994, these trusts are generally not favored because the assets placed in such a trust can still be counted toward the elective share if the decedent retained certain powers or interests in the trust. That means the trust often fails to shield assets from the elective share and can complicate administration and tax planning. In practice, planners usually avoid elective share trusts and instead pursue other methods (like outright provisions or different types of trusts) to address the spouse’s needs without triggering inclusion in the elective share.