Master Provides Guidance on What Can be Used to Pay a Surviving Spouse’s Elective Share Claim

Geraldine Messick v. Estate of Ronald R. Messick, C.A. No. 6290-MA (February 3, 2015)

In this case, the surviving spouse filed a timely petition for an elective share. In Delaware, a surviving spouse’s elective share is an amount equal to one third of the elective estate, less certain transfers.  The surviving spouse’s husband’s estate sought an order allowing it to pay the elective share in any assets it so chooses. The gross estate equaled about six and one half million dollars and included ownership interests in various entities, which presumably were not very liquid. The surviving spouse argued that she should not be forced to take minority interests in the entities as her elective share because she claimed that they are being poorly run by the executor/trustee.

12 Del. C. § 901(a) explicitly provides that “[t]he elective share may be satisfied in cash or in kind, or partly in each.” The Master explained that, “[t]his language is clear and unambiguous.” She then ruled that, “[n]evertheless, the amount of [the surviving spouse’s] elective share has yet to be finalized. It would be premature of the Court to issue an order of instruction that might be construed as foreclosing [the surviving spouse] from disputing the valuation of her elective share or whether the proposed distribution of assets satisfies her elective share. (citation omitted). However, since the proposed order also states that [the surviving spouse] retains the right to demand that her elective share be paid in full, I recommend that the proposed order be approved by the Court.”