I am sorry to hear of your dilemma. I realize how frustrating this is for you, but I believe I have information which you will find helpful.
Hawaii's Revised Uniform Probate Code says that a surviving spouse has the right to elect (choose) from the "augmented estate" of the deceased spouse. The maximum amount of the election is a percentage of the augmented estate. The percentage for a marriage of 15 years or more is 50 percent, with lesser percentage for shorter marriages.
The augmented estate includes property in the decedent's probate estate, property in decedent's revocable trust
, life insurance
proceeds of a policy
owned by decedent, property passing to the surviving spouse, the decedent's fractional interest in joint property not passing to the surviving spouse, property given away within two years of death (with some exceptions). If the elective share is more than what the surviving spouse is otherwise receiving, the spouse can make the election. The electing spouse is entitled to recover against property included in the augmented estate.
The elective share rights are also preserved for spouses who are disabled. In that case, a legal guardian, would exercise the rights.
The Hawaii statute defining an augmented estate is fairly inclusive. Therefore, it would seem to include non probate transfers:
"Subject to section 560:2-208, the value of the augmented estate, to the extent provided in sections 560:2-204, 560:2-205, 560:2-206, and 560:2-207, consists of the sum of the values of all property, whether real or personal; movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's non probate transfers to others, the decedent's non probate transfers to the surviving spouse or reciprocal beneficiary
, and the surviving spouse's or reciprocal beneficiary's property and non probate transfers to others. [L 1996, c 288, pt of §1; am L 1997, c 383, §19]"
So, while it would not reduce an elective share, it may make the augmented estate a more attractive choice.
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