Which party may make an election on behalf of a legally incapacitated spouse?

Making an election on behalf of a legally incapacitated spouse typically falls under the authority of a guardian or conservator. In many jurisdictions, when a person is deemed legally incapacitated, a court appoints a guardian or conservator to manage their personal and financial affairs. This appointed individual is authorized to make decisions that are in the best interest of the incapacitated person, including decisions related to wills, trusts, and elections related to inheritances.

The role of a guardian or conservator is to act in a fiduciary capacity, ensuring that the decisions made are aligned with the wishes and best interests of the incapacitated spouse, especially concerning their legal and financial rights after the death of the other spouse. In the case of an election that needs to be made under wills or trust law (for instance, electing against a will or claiming a spousal share), the appointed guardian or conservator has the legal standing to make such elections on behalf of the incapacitated spouse, thereby safeguarding their interests.

Other options, such as a sibling, personal representative, or family attorney, do not have the same legal authority to make decisions specifically on behalf of an incapacitated spouse for the purpose of making elections. A sibling may have personal interest but lacks the legal authority,