Weird Legal English: What do you mean by “take against the will”?

This seemingly cryptic expression “to elect to take against the will” denotes “a spouse’s statutory right to choose, upon the other spouse’s death, either the share under the deceased spouse’s will or the share of the estate as defined in the probate statute, which usually amounts to what a spouse would have received had he died intestate” (Black’s Law Dictionary). In this context “statutory share of the estate” refers to the porción sucesoria legal, while “share under the deceased spouse’s will” is the porción sucesoria dispuesta en el testamento. Thus, the surviving spouse’s “right to elect to take against the (other spouse’s) will” is el derecho del cónyuge supérstite de optar por la porción sucesoria legal en lugar de la dispuesta en el testamento del cónyuge difunto.

It should be noted that “take against the will” has sometimes been mistranslated as impugnar el testamento, which in English is more properly expressed as “to contest (or) to challenge the will.” When probate laws allow a surviving spouse to elect to take against the will, the spouse can choose to apply the provisions of the law rather than the provisions of his/her deceased spouse’s will. But in order to elect to take against a decedent’s will, the surviving spouse does not have to contest or challenge (impugnar) that will, but rather, depending on the jurisdiction, must usually appear before a probate judge to confirm that choice and to “file an election to take against the will form.” This implies filing a document certifying that the surviving spouse freely chooses to take against the will and fully understands the implications of doing so.

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