Updated September 17, 2026. Quick answer: Alabama’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. the lesser of the whole of the decedent’s estate, reduced by the surviving spouse’s own separate estate, or one-third of the decedent’s estate; measured against the probate estate, not an augmented estate
What Alabama actually sets out
| What the statute sets out | What it says |
|---|---|
| Ala. Code Sec. 43-8-70 (elective share) | “If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of the estate. The elective share shall be the lesser of: (1) All of the estate of the deceased reduced by the value of the surviving spouse’s separate estate; or (2) One-third of the estate of the deceased.” |
| The share and what it is measured against | the lesser of (1) the whole of the decedent’s estate reduced by the value of the surviving spouse’s own separate estate, or (2) one-third of the decedent’s estate; measured against the probate estate, not an augmented estate. |
| Regime type | flat, capped fraction offset by the survivor’s own separate estate; not tied to marriage length. |
| Can it be waived | waivable wholly or partly, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. |
| Time limit to file | within 6 months after the date of death, or within 6 months after probate of the decedent’s will, whichever limitation last expires; extendable by the court for cause shown before the deadline. |
How it works in practice
- The share is measured against the estate of the deceased, reduced by the surviving spouse’s own separate estate, and capped at one-third of that estate. Alabama’s own Supreme Court has confirmed this estate is the probate estate, not an augmented estate.
- Partially. This state’s formula is limited to the property described above, which does not reach a properly funded revocable trust the same way an augmented-estate state’s formula does, so trust planning can change the outcome here specifically, though it does not change the analysis in a state with an augmented-estate formula. Alabama’s Supreme Court has confirmed this directly, holding there is no statutory authority for a surviving spouse to reach assets a decedent validly transferred to a trust during his lifetime.
- Waiver: Waivable wholly or partly, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure.
- The election has to be affirmatively filed on a deadline: within 6 months after the date of death, or within 6 months after probate of the decedent’s will, whichever limitation last expires; the court may extend the time for cause shown before that deadline.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Alabama specifically, and its own numbers above should be used instead of the calculator’s national default for a Alabama estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- Alabama’s own legislature site (alison.legislature.state.al.us) is a JavaScript-rendered application this session could not fetch with plain HTTP tooling, and every Justia section URL tried returned HTTP 403. This session instead confirmed the elective-share, waiver, and time-limit text directly against a verbatim Code of Alabama mirror (law.onecle.com), and independently confirmed the trust-reach answer by direct quotation from the Alabama Supreme Court’s own opinion in Russell v. Russell, 758 So.2d 526 (Ala. 1999), fetched from a verbatim case-law mirror; not a secondary summary. No synthesis was needed for any of the four fields.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Alabama is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 17, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
- Ala. Code Sec. 43-8-70 (elective share, verbatim mirror)
- Ala. Code Sec. 43-8-72 (waiver, verbatim mirror)
- Ala. Code Sec. 43-8-73 (time limit, verbatim mirror)
- Russell v. Russell, 758 So.2d 526 (Ala. 1999) (trust reach, verbatim mirror)
- Alabama Legislature, Code of Alabama Sec. 43-8-70 (official home of the text; a JS-rendered portal this session’s tooling could not extract, so the mirrors above carry the verbatim quotes)
The sources above were retrieved and read against the state text on September 17, 2026. Every quotation on this page was checked against those bytes.