Oklahoma § 84-44 - Property which may be disposed of - Election by surviving

§ 84-44. Property which may be disposed of - Election by surviving

spouse - Homestead.

A. Every estate in property may be disposed of by will;

provided however, that a will shall be subservient to any

antenuptial marriage contract in writing; but no spouse shall

bequeath or devise away from the other so much of the estate of the

testator that the other spouse would receive less in value than

would be obtained through succession by law; provided, however, that

Oklahoma Statutes - Title 84. Wills and Succession

of the property not acquired by joint industry during coverture the

testator be not required to devise or bequeath more than one-half

(1/2) thereof in value to the surviving spouse; provided further,

that no person shall by will dispose of property which could not be

by the testator alienated, encumbered or conveyed while living,

except that the homestead may be devised by one spouse to the other.

This subsection shall not apply to the estate of a decedent who dies

on or after July 1, 1985.

B. This subsection shall apply to the estate of a decedent who

dies on or after July 1, 1985.

1. Every estate in property may be disposed of by will except

that a will shall be subservient to any antenuptial marriage

contract in writing. In addition, no spouse shall bequeath or

devise away from the other so much of the estate of the testator

that the other spouse would receive less in value than an undivided

one-half (1/2) interest in the property acquired by the joint

industry of the husband and wife during coverture. No person shall

by will dispose of property which could not be by the testator

alienated, encumbered or conveyed while living, except that the

homestead may be devised by one spouse to the other.

2. The spouse of a decedent has a right of election to take

the one-half (1/2) interest in the property as provided in paragraph

1 of this subsection in lieu of all devises, legacies and bequests

for the benefit of the spouse contained in the last will and

testament of the decedent.

3. If the surviving spouse desires to make the election

provided in paragraph 2 of this subsection to take the property

specified therein in lieu of all devises, legacies and bequests for

the benefit of the surviving spouse contained in the last will and

testament of a decedent, then the surviving spouse shall make such

election affirmatively in writing, which writing shall be filed in

the district court in which the estate of the decedent is being

administered on or before the final date for hearing of the petition

for final distribution of the estate. The court clerk shall

immediately mail a copy of such election to the personal

representative of the estate and to all attorneys of record of the

estate. Such written election of the surviving spouse shall be in

the form of a writing separate from all other pleadings and

documents filed in the district court in which the estate is being

administered. Failure of the surviving spouse to substantially

comply with the provisions of this subsection shall render the

attempted election by the surviving spouse void and of no force or

effect; provided that such failure shall not prohibit the surviving

spouse from making a subsequent election within the allotted time

period, which substantially complies with this subsection.

4. The right of election of the surviving spouse provided for

in paragraph 2 of this subsection is personal to the surviving

Oklahoma Statutes - Title 84. Wills and Succession

spouse and may be exercised only during the lifetime of the

surviving spouse. However, if there has been a guardian or

conservator duly appointed by a court of competent jurisdiction, and

such court has judicially determined the surviving spouse to be

incompetent, then such guardian or conservator may make the election

on behalf of the surviving spouse, but only if the same is approved

by the court having jurisdiction over such guardian or conservator.

Further, a certified copy of the document or documents evidencing

the appointment of such guardian or conservator for the surviving

spouse, and a certified copy of the order of the applicable court

approving such guardian's or conservator's making such election on

behalf of the surviving spouse, shall be attached to the election,

which shall also be in substantial compliance with the provisions of

paragraph 3 of this subsection, or such election shall be void and

of no force or effect. The guardian or conservator may be appointed

in any state, and may have been appointed at any time prior to the

expiration of the time permitted for the election to be made as

provided in paragraph 3 of this subsection.

Amended by Laws 1984, c. 233, § 2, eff. July 1, 1985.