A surviving spouse has a right to elect against the will and to take the share he or she would have been entitled to if there was no will. If for example, the will left the estate to a trust and excluded the spouse, the spouse could take one third of the net probate estate if the decedent had two of more children. The Probate Court issues a citation to the surviving spouse when the will leaves the spouse less than the testamentary share. The spouse has five months after the appointment of the executor to make the election.
