Section 13.12.212 - Right of election personal to surviving spouse; incapacitated surviving spouse(a) The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the court under AS 13.12.211(a). If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by the surviving spouse's conservator, guardian, or agent under the authority of a power of attorney.(b) If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the portion of the elective share and supplemental elective share amounts due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others under AS 13.12.209(b) and (c) shall be placed in a custodial trust for the benefit of the surviving spouse under AS 13.60 (Alaska Uniform Custodial Trust Act), except as provided in (c) - (e) of this section. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. For the purposes of the custodial trust established by this subsection, (1) the electing guardian, conservator, or agent is the custodial trustee;(2) the surviving spouse is the beneficiary; and(3) the custodial trust is determined to have been created by the decedent spouse by written transfer that takes effect at the decedent spouse's death and that directs the custodial trustee to administer the custodial trust as for an incapacitated beneficiary.(c) An incapacitated beneficiary or a person acting on behalf of an incapacitated beneficiary may not terminate a custodial trust established under (b) of this section; but if the beneficiary regains capacity, the beneficiary then acquires the power to terminate the custodial trust by delivering to the custodial trustee a writing signed by the beneficiary declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary.(d) Expenditures by the custodial trustee of the property of a custodial trust established under (b) of this section shall be made with regard to other support, income, and property of the beneficiary and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the beneficiary must qualify on the basis of need.(e) Upon the beneficiary's death, the custodial trustee shall transfer the unexpended property of a custodial trust established under (b) of this section in the following order:(1) under the residuary clause, if any, of the will of the beneficiary's predeceased spouse against whom the elective share was taken, as if the predeceased spouse died immediately after the beneficiary;(2) to the predeceased spouse's heirs under AS 13.12.711.