Detailed Answer

Short answer: In Georgia, heirs who face an elective share dispute can often resolve the matter through mediation by preparing the estate information, understanding the surviving spouse’s statutory rights, selecting an experienced probate mediator, organizing settlement options, and filing any mediated settlement with the probate court. Mediation is usually faster, less expensive, and more flexible than litigation—but it requires good preparation, realistic settlement positions, and clear documentation.

What is an elective share (brief background)

The elective share is a statutory right that allows a surviving spouse to claim a fixed portion of the deceased spouse’s estate regardless of what the will says. In Georgia, the elective share framework is set out in the Georgia statutes (see O.C.G.A. Title 53). Heirs and personal representatives should review those provisions and consider them before contesting or negotiating a claim.

For official state information on probate and dispute-resolution resources, see the Georgia Courts Office of Dispute Resolution: https://georgiacourts.gov/dispute-resolution/ and the Georgia General Assembly site for the code: https://www.legis.ga.gov/ (search for O.C.G.A. Title 53, Chapter 2).

Step-by-step process heirs should follow to resolve an elective share dispute through mediation in GA

1. Learn the basics and confirm who has standing.
   • Confirm whether the dispute involves a surviving spouse’s elective share claim versus other will or trust contests. Only parties with legal standing (heirs, the surviving spouse, personal representative) should participate or be represented in mediation.
   • Review the relevant Georgia statutes (O.C.G.A. Title 53) to understand the surviving spouse’s statutory rights. You can locate the Georgia Code through the General Assembly website: https://www.legis.ga.gov/.
2. Gather documents and build a clear financial picture.
   • Collect the decedent’s will(s), trust documents, account statements, deeds, retirement account summaries, life insurance beneficiary forms, and any pre- or post-nuptial agreements.
   • Prepare an inventory of estate assets and approximate values, and list known liabilities. Mediation depends on accurate valuations and transparent disclosure.
3. Identify legal issues and potential legal defenses or claims.
   • Consider whether any transfer might be treated as a pre-death gift, whether assets pass outside probate (payable-on-death accounts, joint tenancy), and whether a premarital or marital agreement affects the elective share.
   • Discuss potential offsets and credits (e.g., family allowance, homestead allowance) that Georgia law may allow. Confirm specifics with counsel or by consulting the O.C.G.A. provisions.
4. Retain counsel and a qualified mediator.
   • Heirs should consider retaining an attorney experienced in Georgia probate and elective-share matters to advise on legal rights, settlement ranges, and court procedures.
   • Select a mediator who has probate and estate dispute experience. The Georgia Courts’ dispute-resolution page lists approved mediators and resources: https://georgiacourts.gov/dispute-resolution/.
5. Propose mediation early and agree on scope and ground rules.
   • Offer mediation before costly litigation begins. Early mediation preserves estate assets and reduces friction between heirs and the surviving spouse.
   • Agree on confidentiality, what issues the mediation will cover (elective share only or broader estate disputes), who will attend, and whether counsel will be present.
6. Prepare a settlement position and alternatives (BATNA).
   • Each party should prepare a realistic best alternative to a negotiated agreement (BATNA) and a reservation price. Mediators help parties explore compromises such as cash payments, asset transfers, percentage splits, or installment plans.
   • Make settlement proposals anchored in the estate’s valuations and the legal likelihood of a successful elective claim under O.C.G.A. provisions.
7. Use mediation tools: valuations, neutral experts, and phased solutions.
   • If parties dispute the value of assets (real estate, business interests), use a neutral appraiser or forensic accountant to provide an independent valuation to inform settlement talks.
   • Consider phased settlements (partial immediate payment and deferred payments) or structured buyouts to address liquidity issues in the estate.
8. Document any agreement and, if needed, submit it to the probate court.
   • Once the parties reach a settlement, memorialize it in a written mediated settlement agreement that spells out payments, asset transfers, releases, confidentiality, and any timelines.
   • If the estate is under probate court supervision, file the mediated settlement or stipulated order with the probate court so the agreement becomes enforceable and the court can close the matter on its docket.
9. Follow up promptly and enforce the agreement if necessary.
   • Make sure the personal representative implements the settlement terms (transfers asset titles, pays agreed sums, records releases).
   • If the other side breaches the mediated agreement, you may need to seek enforcement through the probate court or a civil action per the settlement terms.

Common mediation settlement options heirs might consider

• Cash payment from estate funds to the surviving spouse in exchange for a release of the elective claim.
• Transfer of a specific asset (home or investment) to the spouse plus a smaller cash payment to equalize values.
• Structured payments over time to preserve estate liquidity while satisfying the spouse’s share.
• Partial release: spouse accepts a smaller share now and reserves limited future claims if certain contingencies occur.

When mediation may not work

Mediation may fail if parties hold polarized positions, conceal material facts, or if one side refuses to bargain in good faith. In those cases, heirs should be prepared to litigate to protect estate interests, but they should weigh litigation costs against likely recovery.

Key Georgia statutory references and resources

• Georgia Code — O.C.G.A. Title 53 (Property) contains the elective share and related probate provisions; consult the Georgia General Assembly site to locate the exact sections: https://www.legis.ga.gov/.
• Georgia Courts — Office of Dispute Resolution (mediation resources and mediator lists): https://georgiacourts.gov/dispute-resolution/.

Disclaimer

This article explains general steps heirs can take to resolve an elective share dispute through mediation in Georgia. It is educational only and does not constitute legal advice. Laws change, and each case depends on its facts. Consult a qualified Georgia probate attorney to apply the law to your situation.

Helpful Hints

• Start mediation early to preserve estate funds and relationships.
• Be transparent with documents—hidden assets or surprises undermine trust and the mediation process.
• Use a mediator experienced in probate and elective-share issues; they understand valuation and family dynamics.
• Prepare realistic numbers: know the estate’s liquidity before proposing cash settlements.
• Get any mediated settlement reviewed by counsel and, when appropriate, entered as a court order to ensure enforceability.
• Confirm any premarital or marital agreement’s effect on the elective share early—these agreements can drastically change bargaining positions.
• Keep communications professional and focused on solutions; mediation rewards practical compromise more than technical legal victories.