Spousal Elective Share Laws by State
An elective share is a legal protection for a surviving spouse who was left out of a will or left less than the law allows. Instead of accepting what the will says, the surviving spouse can choose to take a fixed portion of the estate set by state law. The choice is called an election, and it usually replaces what the will would have given.
50 states and DC compared. Last checked .
At a glance
- Deadline to elect: range
- 3 months to 9 months
- Across the 38 jurisdictions with a single statewide figure.
- Community property state
- 13 of 51
- States and DC where the answer is yes or yes in some cases.
Compare spousal elective share laws
States protect surviving spouses in different ways. Most use an elective share measured by a fraction or percentage of the estate, sometimes an augmented estate that counts certain trusts and transfers made outside the will. A few rely on older rules, such as a life estate in part of the property. Community property states treat much of what a couple earned during the marriage as owned half by each spouse, and some of them have no elective share at all. Each state sets its own deadline and procedure.
51 of 51 shown
| Elective share | Sources | |||
|---|---|---|---|---|
| ALAlabama | Lesser of 1/3 of estate or estate minus spouse's own assetsThe spouse's separate estate includes property owned outright, survivorship interests, trust income, life insurance proceeds and employer plan benefits. | 6 months after death or 6 months after will probate, if later | No | |
| AKAlaska | 1/3 of the augmented estateIf the spouse's total falls below $50,000, a supplemental amount brings it up to $50,000. | 9 months after death or 6 months after will probate, if later | Only by opt-in agreement or trust | |
| AZArizona | Community property: survivor owns 1/2Arizona relies on community property rules rather than a percentage elective share; the will passes the decedent's separate property and share of community property. | Not applicable (no elective share) | Yes | |
| ARArkansas | Dower or curtesy (1/3 land for life, 1/3 personal property)Requires marriage of more than 1 year. With no children, the share is larger (up to one-half against collateral heirs). | 1 month after the creditor claim period ends | No | |
| CACalifornia | Community property: survivor owns 1/2Half of community and quasi-community property belongs to the surviving spouse at death; California relies on these rules rather than a percentage elective share. | Not applicable (no elective share) | Yes | |
| COColorado | 50% of marital-property portion of augmented estateThe marital-property portion rises from 10% after 1 year of marriage to 100% after 10 years. A $50,000 supplemental amount can apply. | 9 months after death or 6 months after will probate, if later | No | |
| CTConnecticut | Life estate in 1/3 of property passing under the willMeasured after payment of debts and charges. It is a life interest, not outright ownership. | 150 days after the probate decree is mailed | No | |
| DEDelaware | 1/3 of the elective estate, minus transfers to the spouseThe elective estate is based on the decedent's federal gross estate, with adjustments. | 6 months after letters are granted | No | |
| DCDistrict of Columbia | Intestate share, capped at 1/2 of the net estateAlso available to surviving domestic partners. A valid prenuptial or postnuptial agreement controls. | 6 months after the will is admitted to probate | No | |
| FLFlorida | 30% of the elective estate | 6 months after notice of administration (max 2 years) | Only by opt-in community property trust | |
| GAGeorgia | Year's support (no percentage elective share found)Year's support is property set apart for the spouse and minor children for 12 months of support, ahead of most other debts. | No election; year's support petition within 24 months | No | |
| HIHawaii | 50% of marital-property portion of augmented estateThe marital-property portion rises from 3% (under 1 year) to 100% after 15 years. A $90,000 supplemental amount can apply. | 9 months after death or 6 months after will probate, if later | No | |
| IDIdaho | 1/2 of augmented quasi-community property estateApplies to property acquired while the couple lived outside Idaho that would have been community property. Community property itself is owned half by each spouse. | 9 months after death or 6 months after petition, if later | Yes | |
| ILIllinois | 1/3 of estate with descendants, 1/2 withoutCalculated on the estate after payment of just claims. | 7 months after the will is admitted to probate | No | |
| INIndiana | 1/2 of the net estateA later childless spouse, where the decedent left children by a prior spouse, gets 1/3 of net personal estate plus 25% of net real estate. | 3 months after the order admitting the will | No | |
| IAIowa | 1/3 of real estate and personal property, plus exempt propertyAlso one-third of revocable trust property in many cases. The elective share replaces gifts under the will, intestacy and revocable trust. | 4 months after service of notice | No | |
| KSKansas | 3% to 50% of augmented estate, by length of marriage50% after 15 years of marriage. A $100,000 supplemental amount can apply. | 6 months after death or after notice of right, if later | No | |
| KYKentucky | 1/2 of surplus personal property, 1/3 of real estateAlso a life estate in 1/3 of real estate owned during the marriage but not at death. Called dower or curtesy. | 6 months after the will is admitted to probate | No | |
| LALouisiana | Community property: survivor owns 1/2The surviving spouse already owns half of the community property. | Not applicable (no elective share) | Yes | |
| MEMaine | 50% of marital-property portion of augmented estateHomestead allowance, exempt property and family allowance are added on top of the elective share. | 9 months after death or 6 months after will probate, if later | No | |
| MDMaryland | 1/3 with surviving issue, 1/2 withoutMeasured on the estate subject to election (an augmented estate that includes revocable trusts and joint property), reduced by spousal benefits. | 9 months after death or 6 months after appointment, if later | No | |
| MAMassachusetts | 1/3 with issue; $25,000 plus 1/2 without issueIf the share exceeds $25,000 and the deceased left issue or kindred, the excess is held for the spouse's lifetime income only. | 6 months after probate of the will | No | |
| MIMichigan | 1/2 of intestate share, less 1/2 of nonprobate transfersReduced by half the value of property the spouse got from the decedent by other means, such as joint ownership or life insurance. | 63 days after claims deadline or inventory, if later | No | |
| MNMinnesota | 3% to 50% of augmented estate, by length of marriageUnder one year of marriage only a supplemental amount applies; 15 years or more gives 50%. A supplemental amount brings the total up to $75,000. | 9 months after death or 6 months after will probate, if later | No | |
| MSMississippi | Intestate share, capped at 1/2 of the estateA spouse whose own separate property equals the share cannot renounce; if it is less, only the shortfall is made up. | 90 days after probate of the will | No | |
| MOMissouri | 1/2 without descendants, 1/3 with descendantsTaken in addition to exempt property and the family allowance, subject to payment of claims. | 10 days after the will contest period ends | No | |
| MTMontana | 50% of marital-property portion of augmented estateA supplemental amount brings the total up to $75,000 if the share is smaller. | 9 months after death or 6 months after will probate, if later | No | |
| NENebraska | Up to 1/2 of the augmented estateIf the petition names no fraction, the share is one-half. | 9 months after death or 6 months after will probate, if later | No | |
| NVNevada | Community property: survivor owns 1/2The decedent's will controls only the decedent's half of the community property. | Not applicable (no elective share) | Yes | |
| NHNew Hampshire | 1/3 with children; $10,000 plus 1/2 of rest withoutWith no children but a parent or sibling: $10,000 each of personal and real property plus half the rest. Larger amounts apply if no close relatives survive. | 6 months after the executor or administrator is appointed | No | |
| NJNew Jersey | 1/3 of the augmented estateNo right of election if a divorce or dissolution complaint was pending when the decedent died. | 6 months after a personal representative is appointed | No | |
| NMNew Mexico | Community property: survivor owns 1/2The surviving spouse keeps their own half of community property. | Not applicable (no elective share) | Yes | |
| NYNew York | Greater of $50,000 or 1/3 of the net estateIf the net estate is under $50,000, the share is the whole net estate. Certain lifetime transfers (testamentary substitutes) count. | 6 months after letters issue (max 2 years after death) | No | |
| NCNorth Carolina | 15% to 50% of total net assets, by length of marriage15% under 5 years, 25% for 5 to 10 years, 33% for 10 to 15 years, 50% for 15 years or more, less net property passing to the spouse. | 6 months after letters are issued | No | |
| NDNorth Dakota | 50% of the augmented estateA supplemental amount brings the spouse up to $75,000 in some cases. Homestead, exempt property and family allowances are added on top. | 9 months after death or 6 months after will probate, if later | No | |
| OHOhio | Intestate share, up to 1/2 of net estate (1/3 with 2+ children)The spouse takes under the intestacy statute: not more than one-half of the net estate, or one-third if two or more children or their descendants survive. | 5 months after executor or administrator is appointed | No | |
| OKOklahoma | 1/2 of property acquired by joint industry during marriageApplies to decedents dying on or after July 1, 1985. The election replaces all gifts to the spouse under the will. | On or before the final distribution hearing | No | |
| OROregon | 5% to 33% of augmented estate, by length of marriage5% for a marriage under 2 years, rising 2 points a year to 33% at 15 years or more. | 9 months after death | No | |
| PAPennsylvania | 1/3 of estate plus certain lifetime transfersCounts property passing by will or intestacy and some transfers such as revocable trusts and survivorship property created during the marriage. | 6 months after death or 6 months after probate, if later | No | |
| RIRhode Island | Life estate in the decedent's real estateReal estate conveyed by deed recorded before death is not subject to the life estate. Gifts in the will bar the life estate unless renounced. | 6 months after fiduciary's qualification is published | No | |
| SCSouth Carolina | 1/3 of the probate estate | 8 months after death or 6 months after will probate, if later | No | |
| SDSouth Dakota | 3% to 50% of augmented estate, by length of marriageSupplemental amount only for marriages under 1 year; 50% after 15 years or more. | 9 months after death or 4 months after will probate, if later | Only by opt-in special spousal trust | |
| TNTennessee | 10% to 40% of net estate, by length of marriage10% under 3 years, 20% for 3 to 6 years, 30% for 6 to 9 years, 40% for 9 years or more. Years of marriage to the same person are combined. | 9 months after death | Only by opt-in community property trust | |
| TXTexas | Community property: survivor owns 1/2Texas has no elective share statute. Property acquired by either spouse during marriage, other than separate property, is community property. | Not applicable (no elective share) | Yes | |
| UTUtah | 1/3 of the augmented estateA supplemental amount brings the spouse up to $75,000 in some cases. Homestead, exempt property and family allowances count against the share. | 9 months after death or 6 months after will probate, if later | No | |
| VTVermont | 1/2 of the probate estate after claims and expenses | 4 months after notice of rights or inventory, if later | No | |
| VAVirginia | 50% of marital-property portion of augmented estateThe marital-property portion is 3% of the augmented estate for marriages under 1 year, rising to 100% at 15 years or more, so the share reaches 50% of the augmented estate. | 6 months after will probate or administrator qualifies | No | |
| WAWashington | Community property: survivor owns 1/2Washington has no elective share statute. Neither spouse may leave by will more than one-half of the community property. | Not applicable (no elective share) | Yes | |
| WVWest Virginia | 3% to 50% of augmented estate, by length of marriageSupplemental amount only for marriages under 1 year; 50% after 15 years or more. A $25,000 supplemental amount may apply. | 9 months after death or 6 months after will probate, if later | No | |
| WIWisconsin | Own 1/2 of marital property, plus up to 50% of deferred estateUp to 50% of the augmented deferred marital property estate, not of the whole estate. | 6 months after death | Yes (marital property) | |
| WYWyoming | 1/2 of estate (1/4 if not a parent of decedent's issue)Measured on property subject to the will, after funeral and administration expenses, allowances and claims. | 3 months after will probate or 30 days after notice, if later | No |
General information, not legal advice. Laws change, and cities can add their own rules, so check the current statute before you rely on it.
What this means in practice
The election is not automatic. A surviving spouse who wants the elective share usually must file a written election with the probate court, and serve notice on the personal representative, before a deadline. Missing the deadline can mean losing the right to elect.
Taking the elective share often means giving up gifts under the will and sometimes other benefits. Comparing what the will provides against the statutory share, including any trusts, life insurance or joint accounts that may count toward the share, helps show whether an election makes sense.
Spouses can often waive elective share rights in a written prenuptial or postnuptial agreement signed with full disclosure. If a waiver is part of an estate plan, the will, trust and marital agreement should be drafted to work together, and a local attorney can confirm the formal requirements.
Spousal Elective Share Laws: state by state
- Alabama
- Alaska
- Arizona
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Florida
- Georgia
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Missouri
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- South Carolina
- South Dakota
- Tennessee
- Texas
- Utah
- Vermont
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming
Frequently asked questions
What is a spousal elective share?
It is a portion of a deceased spouse's estate that the surviving spouse can choose to take instead of what the will provides. State law sets how the share is measured and what property counts toward it.
Can I disinherit my spouse with a will?
Usually not completely. Elective share laws and community property rules give surviving spouses rights that a will alone cannot remove. A valid written waiver, such as in a prenuptial or postnuptial agreement, can change this in many cases.
What is an augmented estate?
An augmented estate is a wider measure of the estate used in some states to calculate the elective share. Besides probate property, it can include assets such as revocable trusts, joint accounts and certain gifts, so that a spouse cannot be cut out by moving assets outside the will.
How do community property states protect a surviving spouse?
In community property states, property earned during the marriage is generally owned half by each spouse. The surviving spouse already owns their half, and the deceased spouse's will controls only the deceased spouse's own share.
Is there a deadline to claim the elective share?
Yes. Each state that has an elective share sets a time limit, usually counted from the date of death or from the start of probate. Some courts can extend it in limited situations. Check the deadline for your state as soon as possible.
Which states have the highest and lowest deadline to elect?
Among the 38 jurisdictions with a single statewide figure, deadline to elect ranges from 3 months (Indiana and Wyoming) to 9 months (Alaska, Colorado, Hawaii, Idaho, Maine and Maryland and others). The most common figure is 6 months (15 jurisdictions). Check each state's page for exceptions.
Community property state: which states say yes?
Of the 51 jurisdictions we checked, the answer is yes in 9 jurisdictions, in some cases in 4, no in 38. Yes: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In some cases: Alaska, Florida, South Dakota and Tennessee.