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Wills and Estates

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Can A Spouse Elect Against A Will In This State?

A surviving spouse can elect to take one-half of the entire estate if the decedent left no descendants surviving. If the decedent left descendants surviving, then the surviving spouse may elect to take one-third of the estate.
(Section 755-5/2-8) Please see specific state for details and/or differences.

ALABAMA | ALASKA | ARIZONA | ARKANSAS | CALIFORNIA | COLORADO | CONNECTICUT | DELAWARE | 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

ALABAMA
A surviving spouse can take an elective share which is computed as the lesser of the entire decedent's estate reduced by the value of the estate of the surviving spouse, or one-third of the decedent's estate. The election must be filed by the later of six months after death or admission of Will to probate. A surviving spouse is also entitled to a family allowance, homestead allowance and to exempt property. Ala. Code Sec. 43-8-70,73,74. A spouse omitted from a Will can take the spousal intestate share (see separate question) provided the omission was unintentional and the spouse was not otherwise provided for by the decedent outside the Will. Ala. Code Sec. 43-8-90.

ALASKA
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general, it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property.

The decedent retained the power to consume the transferred property or dispose of it for his own benefit.

Any transfer held at the time of death with another with right of survivorship.

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate, for purposes of determining the intestate share. (Uniform Probate Code section 2-202).
A surviving spouse has a right to take an elective share equal to 1/3 of the augmented estate. (Code Section 13.11.070). The surviving spouse must file a Petition within 9 months after the date of death or within 6 months after probate is initiated, whichever is later. (Code Section 13.11.090).
ARIZONA
Since Arizona is a community property state, the surviving spouse has no right to an elective share. However, the spouse is entitled to his or her respective share of the community property.
ARKANSAS
A surviving spouse who was married to the decedent for more than1 year can elect between the Will provisions and the property they would have taken under the intestacy (i.e. died without a Will) statutes (see separate question), plus homestead and statutory allowances. Under the intestacy statutes, the surviving spouse is entitled to the entire residue of the estate if there are no surviving children, parents, brothers or sisters, grandparents, aunts or uncles, great grandparents, great aunts or uncles, or any lineal descendants of any of these classes. (Section 28-39-401) The election must be made within 1 month after the time expires for filing claims and must be filed in the office of the probate clerk. A duplicate copy of the election must be filed with the recorder in each county where the testator owned real estate. (Section 28-39-404)
CALIFORNIA
Since California is a community property state, the surviving spouse generally does not have a right to elect between the provisions of the Will and the share he or she would have received in the case of the decedent dying without a Will. (Section 120) The surviving spouse will be entitled to 1/2 of the community property. If the decedent tried to dispose of more than his or her share of the community property by a Will, then the surviving spouse must decide whether to take under the Will or take 1/2 of the community property. The surviving spouse is entitled to take his or her community share, as well as, any bequests given under the Will, unless the Will states otherwise.
COLORADO
The surviving spouse may elect to take up to 1/2 of the decedent's estate. The exact amount is determined by the length of time the surviving spouse and decedent were married to each other ,but in no case will it exceed 1/2 of the estate. The surviving spouse must file this election in court or deliver it to the executor within 9 months after death or 6 months after the Will was admitted into probate, whichever is later. (Section 15-11-201)
CONNECTICUT
A surviving spouse may elect to take a statutory share rather than the share as provided by the Will. This amounts to 1/3 of the estate for life. A life estate does not grant outright ownership, but rather lets the spouse have the use and benefit of the assets during the spouse's lifetime. To file the election, the spouse must file a signed written notice with the probate court within 150 days of appointment of the executor. (Section 45-273 a)
DELAWARE
A surviving spouse has a right to take an elective share equaling 1/3 of the estate. An amount must be subtracted for transfers made at death by the decedent to the surviving spouse, whether in cash or in kind. (Section 12-901) In order to exercise this election, the spouse must file a petition in court within 6 months after the probate estate is opened. (Section 12-906)
FLORIDA
If the decedent was domiciled in Florida, then the surviving spouse has a right to elect a share of the decedent's estate. (Section 732.201) This share equals 30% of the fair market value of all the assets owned by the decedent that are subject to administration, wherever located, except for real estate located outside of the state. This computation is made after deducting all valid claims, mortgages and debts. (Section 732.207) The surviving spouse is also entitled to a homestead allowance and other exempt properties. (Section 732.208) The election is filed with the court no later than 4 months from the date of the first publication of notice of administration. (Section 732.212)
GEORGIA
The spouse is entitled to 12 months support and maintenance from the date the estate administration commences. (Section 53-5-2) This time may be extended if the estate administration takes more than 1 year. If the Will makes provisions in lieu of this, then the spouse can make an election to obtain the support allowance. (Section 53-5-5)
HAWAII
For a married person domiciled in Hawaii, the surviving spouse may take an elective share equal to 1/3 of the net probate estate, subject to certain limitations and conditions. (Section 560:2-201) A surviving spouse is also entitled to the household goods, automobiles and personal effects in an amount up to $5,000 after security interests and encumbrances are deducted. (Section 560:2-402)
IDAHO
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general, it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage. This transfer must fall into one of the following categories:

The decedent retained a right of possession or income from the property,

The decedent retained the power to consume the transferred property or dispose of it for his own benefit,

Any transfer held at the time of death with another with right of survivorship,

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property with the right of survivorship the spouse would have received with the decedent. The total of these computations is then used as the value of the augmented estate, for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

The surviving spouse can elect to receive 1/2 of the total augmented quasi-community property estate. The augmented estate includes property received from the decedent but owned by the surviving spouse at time of death, plus the value of any property transferred by the surviving spouse during the marriage without full or adequate consideration. It shall also include property transferred from the decedent to the surviving spouse by joint ownership. The surviving spouse may either require that 1/2 of the property which has been transferred to someone else but is considered to be part of the augmented estate be restored to the estate, or that 1/2 of its value be restored if the transfer occurred within 2 years of death and exceeded $3,000 to any one transferee. This also includes property held with another with right of survivorship.
Quasi-community property consists of real estate within the state and all personal property, wherever located, which would have been considered community property had the decedent been domiciled in Idaho at the time of its acquisition. It may also include real estate located in another state if the laws of that state permit Idaho law to control. One-half of Quasi-community property is considered to belong to the decedent and 1/2 to the surviving spouse. If the decedent does not dispose of his or her half by Will, then it also goes to the surviving spouse.
This elective share must be reduced by administration expenses, statutory allowances, and claims. The election must be filed with the court within 6 months after publication of notice to creditors. The surviving spouse is still entitled to inherit under the provisions of the decedent’s Will or the intestacy statutes in addition to electing the elective share, unless the spouse expressly renounces these. The surviving spouse is also entitled to a homestead allowance, exempt property and a family allowance regardless of whether the elective share is taken. (Sections 15-2-201, 202, 203, 205, 206). If the surviving spouse is the sole beneficiary, then there is a summary administration procedure where the spouse files a verified petition setting forth certain facts. Notice of hearing must be given. The court will then issue a formal decree allowing distribution without administration. In this case, the surviving spouse assumes and is liable for all indebtedness that might be a claim against the estate. (Section 15-3-1205).
ILLINOIS
A surviving spouse can elect to take 1/2 of the entire estate if the decedent left no descendants surviving. If the decedent left descendants surviving, then the surviving spouse may elect to take 1/3 of the estate. (Section 755-5/2-8)
INDIANA
A surviving spouse is entitled to 1/2 of the decedent's personal property and real estate. If the decedent left descendants surviving, none of whom are also descendants of the surviving spouse, and the surviving spouse is the second or later spouse of the decedent, then the spouse is only entitled to 1/3 of the personal property and a life estate in 1/3 of the real estate. (Section 29-1-3-1) The spouse must file an election in writing with the probate clerk of court no later than 10 days after the period expires for filing claims.
IOWA
There is a presumption that the surviving spouse inherits under the Will, unless the spouse chooses to decline the inheritance under the Will in lieu of choosing the elective share. In this case, the spouse must file the proper election with the clerk of court within the proper time period, which is normally 4 months after the date of the second publication. (Section 633.237) The share of a spouse electing against a Will is 1/3 of the value of the real estate, all of the exempt personal property, and 1/3 of the balance of the personal property, after payment of debts. (Section 633.238) In lieu of taking the 1/3 share of real estate, the spouse may elect to occupy the homestead. (Section 633.240)
KANSAS
A surviving spouse is entitled to an elective share in lieu of a bequest under the Will. This share is determined by the length of marriage. If the spouse has consented to the bequest received in the Will, the consent is binding. The spouse must file an election with the court within 6 months after the probate proceeding is initiated. (Section 59-2233).
KENTUCKY
The surviving spouse may elect to take the dower share explained in the section on "Intestate Estates." However, the spouse’s share in real estate is limited to a 1/3 interest. (Section 392.080). In order to make this election, the surviving spouse must file a renunciation with the clerk of court within 6 months after the probate was commenced. (Section 392.080).
LOUISIANA
In Louisiana, a surviving spouse automatically receives his or her share of community property. In addition to this, the surviving spouse also receives what is called a "usufruct," which is similar to a life estate in certain property. This generally terminates upon remarriage or death and applies to the testator's share of community property. The purpose of "usufruct" is to preserve the community estate upon the death of one spouse and grant the survivor a means for maintaining a standard of living. (Section 890)
MAINE
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property with the right of survivorship the spouse would have received with the decedent. The total of these computations is then used as the value of the augmented estate, for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

A surviving spouse has a right of election to take 1/3 of the augmented estate. (Section 2-201). The augmented estate is determined by subtracting funeral and administration expenses, statutory allowances, and enforceable claims and then adding to this amount the value of any property transferred by the decedent during the marriage for less than full and adequate consideration. The augmented estate does not include life insurance or retirement benefits payable to someone other than the surviving spouse. The value of the augmented estate also includes the value of property owned by the surviving spouse at the time of death, plus the similar addition for any property the spouse would have transferred for less than full and valuable consideration during the marriage. (Section 2-202).

The surviving spouse must petition for the elective share within 9 months after the date of death or within 6 months after probate of the Will, whichever is later. (Section 2-205). The surviving spouse is also entitled to a homestead allowance, exempt property and a family allowance regardless of whether the elective share is chosen. (Section 2-206)

MARYLAND
The surviving spouse may elect to take 1/2 of the net estate if there are no surviving issue of the decedent. If the decedent left surviving issue, then the surviving spouse is entitled to 1/3 of the net estate. (Section 3-203). The election must be filed within 7 months after the appointment of the executor. (Section 3-206)
MASSACHUSETTS
The surviving spouse is entitled to an elective share that must be filed within 6 months after probate commences. If the decedent left issue surviving, then the surviving spouse is entitled to 1/3 of all personal and real property. If the decedent leaves no issue surviving, but does leave next of kin, then the surviving spouse is entitled to $25,000 plus 1/2 of the balance of personal and real property. In either case, if the elective share exceeds $25,000, the spouse takes $25,000 plus an income for life in the excess of the estate that exceeds $25,000. If the decedent left no issue or next of kin, then the surviving spouse is entitled to $25,000 plus 1/2 of the balance of the personal and real property, in their absolute right. (Chapter 191, Section 15). When computing the value of the property, assets of a revocable trust are included.
MICHIGAN
A surviving spouse may elect to take 1/2 of the amount that would have passed to the spouse if the testator had died without a Will, reduced by 1/2 of the value of the property otherwise passing to the surviving spouse. (Section 700.282). Alternatively, a widow may take a dower right, which is a right to a life estate in 1/3 of the entire estate. (Section 558.1). The executor serves the surviving spouse with a Notice of Right to Election which gives the spouse 60 days to file the election.
MINNESOTA
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at the time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate, for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

Effective for deaths after December 31, 1995, the surviving spouse may elect a share of the augmented estate. In general terms, the augmented estate includes the probate estate plus nonprobate assets. It also includes property the decedent transferred during the marriage if transferred for less than fair and adequate consideration to the extent the transfer amounts to more than $10,000 per year to any one person, and if made during 2 years prior to death. The surviving spouse's property and similar transfers made by the spouse are also included when computing the augmented estate. The amount of the elective share varies depending upon the length of marriage. The minimum is 3% for a marriage of 1 or 2 years and increases to 50% for marriages lasting 15 years or more. The minimum amount is $50,000, regardless of the length of marriage. (Section 524.2-201) Prior to 1996, the spouse did have an elective share, but the computation was made in a different manner.

MISSISSIPPI
A surviving spouse may elect to receive the share which he or she would have taken had the decedent died without a Will, although this share may not exceed 1/2 of the estate. (Section 91-5-25) However, if the surviving spouse owns separate property which equals or exceeds what he or she would receive as an elective share, then the surviving spouse cannot elect against the Will. In the case where the surviving spouse's separate share is of some value but of less value than the elective share, the surviving spouse can receive such amount to make up the difference. An exception to this is if the separate property owned by the surviving spouse amounts to less than 20% of the amount of the elective share, in which case the surviving spouse may take the entire elective share. (Section 91-5-29) In order to make this election, the surviving spouse must file a renunciation within 90 days after the Will is admitted to probate.
MISSOURI
A surviving spouse is entitled to receive 1/2 of the estate if the decedent left no living descendants. If the decedent left descendants, the spouse is entitled to1/3 of the estate subject to payment of claims. In addition to this, the spouse receives exempt property and a 1-year support allowance. (Section 474.160) All property is counted when computing this share, such as non-probate property like trusts, insurance, retirement plans and jointly held property. (Section 474.163) The spouse must file the election within 10 days after the time expires for contesting a Will or 90 days after final determination of related litigation. (Section 474.180)
MONTANA
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

The surviving spouse may elect to take a share of up to 50% of the augmented estate, depending on the length of marriage. (See definition above) The percentage the spouse is entitled to receive reaches a maximum of 50% for those married 15 or more years. Where the computed share amounts to less than $50,000, there is a supplemental amount available. Also, the surviving spouse receives a homestead allowance, a family allowance, and the exempt property, in addition to this elective share. In order to make this election, the spouse must file the election within 9 months of death or within 6 months after probate of the Will, whichever is later. (Section 72-2-221-227)

NEBRASKA
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

A surviving spouse has the right to take an elective share amounting to 1/3 of the augmented estate. (See definition of augmented estate above). Also, a surviving spouse is entitled to the homestead allowance, family allowance, and exempt property, whether or not he or she takes the elective share. (Uniform Probate Code Section 2-201) In order to claim the elective share, the spouse must file a petition within 9 months after the date of death or within 6 months after the Will is admitted to probate, whichever is later. (Section 2-205)

NEVADA
The surviving spouse has no right to elect against a Will in order to inherit under the intestacy statutes. However, since Nevada is a community property state, the spouse is entitled to an undivided 1/2 interest in the community property of the decedent. (Section 123.250)
NEW HAMPSHIRE
The surviving spouse may elect to waive the homestead right and the provisions of the Will and instead take 1/3 of the personal property and real estate, in the case where the decedent left children surviving. If the decedent left no children or descendants, but does leave a parent or brother or sister surviving, then the spouse takes $10,000 of personal property and $10,000 of real estate plus 1/2 of the balance of the estate. Where the value of the real estate does not exceed $10,000, the spouse is entitled to the entire share. If the decedent left none of the aforementioned relatives surviving, then the spouse takes $10,000 plus $2,000 for each full year of marriage, plus 1/2 of the remainder of the estate. (Chapter 560 Section 10) The surviving spouse must file a waiver in the probate office within 6 months after the executor is appointed. The waiver must also be recorded in the county where any real estate is situated. (Chapter 560 Sections 10-14)
NEW JERSEY
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate, for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

In New Jersey a surviving spouse may claim an elective share of the decedent's assets. This elective share is based on a share of the augmented estate, defined above. The spouse must file this election within 6 months after the appointment of the executor. (Title 3B Chapter 8 Section 1)

NEW MEXICO
A spouse generally has no right to elect against the terms of the Will. However, if the Will does not provide for the surviving spouse, the spouse may receive his or her intestate share unless the omission was intentional. (Section 45-2-301, 302) The surviving spouse owns 1/2 of the community property since New Mexico is a community property state. The decedent can dispose of the other 1/2 of community property by Will. (Section 54-2-805)
NEW YORK
For deaths after September 1, 1992, a surviving spouse may elect to take a share of the decedent's estate which is the greater of $50,000 or 1/3 of the net estate. If the total value of the net estate is less than $50,000, then the spouse takes the entire estate. This share is then reduced by the value the spouse receives through the Will. (NY Law EPTL Section 5-1.1-A)
NORTH CAROLINA
A surviving spouse may elect against a Will and take a life estate in 1/3 of the value of all of the real estate owned by the decedent. Regardless of value, the surviving spouse receives a life interest in the dwelling house as part of the elective share. The spouse also receives ownership of the household furnishings. (Section 29-30) This rule applies when a spouse elects to take in lieu of the intestate share.
Where the surviving spouse files an election against the Will, the surviving spouse can receive the same share he or she would have received had the decedent died without a Will, up to a maximum of 1/2 of the decedent's estate before deduction for estate taxes. If the surviving spouse is a second or successive spouse, then the spouse receives only 1/2 of the intestate share, if the decedent is also survived by descendants from a former marriage and has no descendants from the marriage to the surviving spouse. (Section Section 30-3)
NORTH DAKOTA
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

A surviving spouse has a right of election to take an elective share of 1/3 of the augmented estate. (Uniform probate code section 2-201) The spouse must file a petition within 9 months after the date of death or within 6 months after probate of the Will, whichever is later. A surviving spouse is also entitled to a homestead allowance, exempt property, and a family allowance, whether or not the elective share is taken. (Uniform probate code section 2-206) The surviving spouse's share of exempt property amounts to $10,000. (ND Code Section 30.1-07-01)

OHIO
The surviving spouse can elect to take the share he or she would be entitled to if the decedent had died without a Will, in lieu of provisions under the Will. (Section 2106.01) The election must be made in person and be made within 1 month after notice is given by the court.
In the case where the decedent died without a Will, the surviving spouse may elect to receive as part of his or her share, the decedent's entire interest in the mansion house, including its household furnishings and adjacent farmland. This election must be made before the final account is filed. (Section 2106.10)
OKLAHOMA
A spouse may not bequeath away from the surviving spouse an amount in excess of an undivided 1/2 interest in the property acquired through the joint efforts of the spouses during marriage. The spouse has a right to elect to take 1/2 of the property acquired through joint effort instead of the bequest given under the Will. This election must be filed in writing in the court before the date of hearing for final distribution. (Section 84-44)
OREGON
The surviving spouse has the right to elect to take 1/4 of the decedent's net estate; however, this share is reduced by property given to the spouse through the Will, either outright or by a life estate. The share is also reduced by the present value of an income right the spouse may have to a trust that was established under the Will. (Section 114.105) There is a maximum value that the spouse may receive through the elective share which is set by state law. (Section 114.125) In order to make this election, the spouse must file a statement within 90 days after the Will is admitted to probate or within 30 days after the filing of the inventory, whichever is later. (Section 114.145)
PENNSYLVANIA
A surviving spouse can elect to take 1/3 of the probate estate. Included in the probate estate for this computation will be any property transferred by the decedent within 1 year before death in excess of $3,000 per donee and certain property transferred without full and adequate consideration. The estate does not contain life insurance on the decedent's life or employee benefits. This election must be made in writing and delivered to the clerk of court within 6 months after appointment of the executor. (Section 20-2203-2210)
RHODE ISLAND
The surviving spouse may elect to take a life estate in all of the real estate which was owned by the decedent. Where the Will does not indicate that the bequests to the surviving spouse are in lieu of this life estate, the life estate may be in addition to the provisions of the Will. (Section 33-25-3) In order to elect the life estate, the spouse must file the election in writing with the probate court within 6 months after the Will is admitted into probate. (Section 33-25-4)
SOUTH CAROLINA
A surviving spouse has a right to an elective share consisting of 1/3 of the decedent's probate estate. If the decedent had a revocable inter vivos trust, these assets may be added to the probate estate for purposes of computing the 1/3 share. (Section 62-7-112) The spouse must file the election by filing a petition in the probate court within 8 months after death or 6 months after probate of the Will is commenced, whichever is later. The spouse's elective share is charged with property passing to the spouse outside of this election. (Section 62-2-201-207)
SOUTH DAKOTA
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property.

The decedent retained the power to consume the transferred property or dispose of it for his own benefit.

Any transfer, held at the time of death with another, with right of survivorship.

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The augmented estate does not include life insurance or a pension payable to someone other than the surviving spouse. Once this amount is determined, an amount is added that represents the value of property owned by the surviving spouse at time of death computed in the same manner. However, the value of the property owned by the surviving spouse is limited to any amounts which were received from the decedent during his or her lifetime without full consideration at fair market value. This includes any property the spouse would have received with the right of survivorship with the decedent. The total of these computations is then used as the value of the augmented estate for purposes of determining the intestate share. (Uniform Probate Code section 2-202)

The surviving spouse may elect to take a percentage share of the augmented estate, determined by the length of time the spouse and decedent were married to each other. The percentage ranges from 3% for 1 year of marriage to 50% for 15 or more years. If the amount of the elective share amounts to less than $50,000, then the spouse receives a supplemental amount to bring it up to $50,000. The spouse also receives the homestead allowance, exempt property, and family allowance, in addition to the elective share. (Section 29A-2-202)

TENNESSEE
The surviving spouse may elect to take 1/3 of the decedent's estate, after payment of funeral and administration expenses and statutory allowances. If the decedent had made any asset transfers with a fraudulent intent to avoid this elective share, such a transfer is voidable. (Section 31-1-105) The spouse must file the election within the later of 9 months after death or 6 months after the Will is admitted to probate. (Section 31-4-101)
TEXAS
Since Texas is a community property state, there is generally no right of election against the Will. However, in the case where the decedent attempts to dispose of the surviving spouse's share of community property, the surviving spouse may elect whether to take under the provision made in the Will or the spouse may retain his or her interest in the community property. This election must be made on or before the probate of the Will.
UTAH
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

A surviving spouse may elect to take against a Will and will be entitled to receive up to 1/3 of the "augmented estate." (Section 75-2-201, 202) Any property the spouse receives under the Will is charged against the elective share. (Section 75-2-207) This election must be filed with the courts within 1 year after death or within 6 months after probate proceedings are begun, whichever is later. (Section 75-2-201)

VERMONT
A surviving spouse may relinquish any provisions under the Will and instead elect to take the share called "dower of courtesy." This generally amounts to 1/3 of the real estate of the decedent. However, if the decedent left only 1 heir surviving who was also issue of the surviving spouse, then the surviving spouse is entitled to 1/2. This election must be made within 8 months after probate proceedings are begun by filing notice with the probate court. (Section 14-474-75)
VIRGINIA
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, then there is an addition back for the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property

The decedent retained the power to consume the transferred property or dispose of it for his own benefit

Any transfer held at the time of death with another with right of survivorship

Any transfer as a gift within 2 years of death to the extent the transfer to any one person exceeds $3,000.

The elective share of the spouse depends on whether the decedent died with or without a Will. Where the decedent died without a Will, the surviving spouse may elect to take 1/3 of the "augmented estate" if the decedent left issue surviving. If the decedent left no issue surviving, then the spouse may elect to take 1/2 of the "augmented estate." (Section 64.1-16)

In the case where the decedent died with a Will, the surviving spouse may elect to take 1/3 of the "augmented estate" if the decedent left surviving children or descendants. If there are not surviving descendants, the surviving spouse takes 1/2. For a more complete description of an augmented estate, see paragraph above. Generally, the augmented estate includes the probate estate, certain transfers the decedent made during his or her lifetime, life insurance, and retirement benefits. (Section 64.1-16.1) In order to claim the elective share, the spouse must file a claim with the court in writing within 6 months of the appointment of the executor or administrator. (Section 64.1-13)

WASHINGTON
Since Washington is a community property state, 1/2 of the community property and quasi-community property automatically goes to the surviving spouse. As such, there is no state law that gives the surviving spouse a right to elect against the Will. However, if the decedent tried to dispose of the surviving spouse's share of community property, the surviving spouse may either take the share under the Will or renounce it and take his or her 1/2 community interest.
WEST VIRGINIA
The following definition applies only to those states utilizing an "augmented estate."
In some states, the spouse receives a share of the estate that is defined as an "augmented estate." Although this definition can vary slightly from state to state, in general it has a common meaning as defined by the Uniform Probate Code. The augmented estate means the gross estate reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims. Once this amount is determined, there is added back the value of any property the decedent transferred to anyone other than a bonafide purchaser at fair market value at any time during the marriage, if this transfer falls into one of the following categories:

The decedent retained a right of possession or income from the property.

The decedent retained the power to consume the transferred property or dispose of it for his own benefit.

Any transfer, held at the time of death with another, with right of survivorship.

Any transfer, as a gift, within 2 years of death, to the extent the transfer to any one person exceeds $3,000.

The surviving spouse has a right to elect against the Will and may take a percentage of the "augmented estate" based on the length of the marriage. The percentage is based on a graduated scale, beginning at 3% for one year of marriage, and goes up to 50% for fifteen or more years of marriage. (Ch. 42, Art. 3, Section 1, [a]) If the amount of the elective share amounts to less than $25,000, an additional amount is given to the spouse so that the share will equal $25,000. (Ch. 42, Art. 3, Section 1, [b]) In order to claim the elective share, the spouse must file a petition with the court no later than 9 months after death, or 6 months after probate of the Will. (Ch. 42, Art. 3, Section 4). The spouse may waive the right of election either before or after marriage. (Ch. 42, Art. 3, Section [3a])

WISCONSIN
Generally, since Wisconsin is a community property state, the spouse has no right to elect against the decedent’s separate property or the decedent’s share of marital property. However, the spouse may elect to receive up to 1/2 of deferred marital property, but this is reduced by any property used to satisfy other obligations to the spouse. (Section 861.2) Deferred marital property is property acquired during marriage while chapter 766 establishing community property rights did not apply, but which would have been community property had the law been in effect. (Section 851.055) The spouse is barred from making this election if the spouse is already receiving at least 1/2 of certain property, including the net estate, annuities and life insurance. (Section 861.13) In addition to this right of election, the spouse may elect to take up to 1/2 of deferred marital property which is not subject to probate administration. (Section 861.03) In order to make these elections, the spouse must file with the court within 6 months after death. (Section 861.11)
WYOMING
A surviving spouse has the right to elect against the net estate. If the decedent left no descendants surviving or if the surviving descendants are also descendants of the surviving spouse, then the spouse is entitled to 1/2 of the estate. However, if any descendants survive who are not also descendants of the surviving spouse, the spouse takes 1/4 of the estate. (Section 2-5-101, (a). The election must be filed with the court within 3 months after the Will is admitted to probate or 30 days after begin notified of the election right by court, whichever is later. (Section 2-5-105).

This is not a substitute for legal advice. An attorney must be consulted.
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