Native American Restricted Allotments: A Surviving Spouse's Elective Share Rights

Abstract

Nearly all states have laws that prohibit decedents from disinheriting their spouses. In these states, if a surviving spouse is disinherited, the spouse may renounce the will and elect to take a certain percentage of the decedent's estate. In Oklahoma and Nebraska, for instance, a surviving spouse may elect to take one-half of the decedent's estate in lieu of the devises, if any, made for the surviving spouse in the will. These "elective share" statutes afford long-term financial security for surviving spouses. A century ago, Native Americans acquired real estate by allotment. Under the allotment system, the federal government issued Native Americans parcels of former reservation land in order to assimilate them into white society. Native Americans received individual land allotments, with the United States holding title in trust for the allottees for twenty-five years, during which time the allotment could not be sold, mortgaged, or taxed without the consent of the Secretary of the Interior. After twenty-five years the allottee received the land in fee simple. Subject to certain restrictions, federal law permits Native Americans to dispose of their allotments by will. There are no federal laws, however, mandating elective shares for the surviving spouses of Native American allottees, and state elective share statutes are not applicable to the disposal of allotted lands. Accordingly, a Native American can bequeath an allotment to someone other than his or her spouse, which is tantamount to disinheriting the surviving spouse because the allotment is often the only significant asset in the decedent's estate. The absence of a federal elective share statute means, ironically, that a Native American's devise of restricted allotments is less restricted than the devise of real property by non-Native Americans. It is time to rectify this injustice by enacting a federal elective share regulation to protect Native American spouses from disinheritance.

Keywords: Native American Restricted Allotment, spousal disinheritance, wills