Surviving Spouse Rights Idaho

Idaho law provides a surviving spouse with many important widow’s rights and benefits, including:

  • Intestate share
  • Community Property
  • Homestead allowance
  • Elective Share (sometimes)

Does a Surviving Spouse Have Rights in Idaho When There Is No Valid Will?

Yes, surviving spouses in Idaho are protected by state law.  When a decedent dies without a valid will, they have died intestate.  Idaho law controls the share of the estate that goes to the surviving spouse.

Surviving Spouse’s Share of Separate Property

If the decedent did not have any surviving issue or parents, then the surviving spouse is entitled to all of the separate property.    If the decedent had surviving issue or parents, then the surviving spouse has the right to ½ of the estate.  Idaho Code 15-2-102.

Surviving Spouse’s Share of Community Property

The surviving spouse is entitled to decedent’s ½ of the community property.

Surviving Spouse Allowances and Exemptions

  • Homestead Allowance: The surviving spouse is entitled to a homestead allowance of $50,000.  Idaho Code 15-2-402.
  • Exempt Property:  In addition to the homestead allowance, a surviving spouse in Idaho is entitled to a value, not exceeding $10,000 of tangible personal property.  Tangible personal property includes household furniture, cars, appliances, and personal effects.  Idaho Code 15-2-403.


Surviving Spouses in Idaho Sometimes Have The Right To An Elective Share

Idaho is a community property state.  If all property was community property, then the right to an elective share simply does not apply.

However, the surviving spouse is entitled to take an elective share of quasi-community property.  Quasi-community property is an additional safeguard afforded to the surviving spouse that accounts for property the spouses acquired during the marriage but outside of the state of Idaho.  The surviving spouse is entitled to include this real and personal property in the calculation towards the elective share.

Amount of Surviving Spouse’s Elective Share

The right to an “elective share” is limited to one-half of the total augmented quasi-community property estate. The augmented estate includes property received from the decedent but not owned by the surviving spouse at the time of decedent’s death, plus the value of property transferred by the surviving spouse without full or adequate consideration during the marriage.  Further, the augmented estate includes property transferred via joint ownership from the decedent to the surviving spouse.

The surviving spouse’s elective share to the quasi community estate shall be reduced by an allocable portion of the general administration expenses, homestead allowance, family allowance, exempt property and enforceable claims. Idaho Code §§ 15-2–203.

Surviving Spouse’s Deadline To Elect To Take Elective Share

The surviving spouse may elect to take his or her elective share in the augmented net estate by mailing or delivering to the personal representative of filing in the court a petition for the elective share by the later of nine (9) months after the death of the decedent’s death or six (6) months after the date of the filing of the petition for probate.  Idaho Code 15-2-205(a).

The Court may permit additional time for the surviving spouse to elect as it sees fit for cause.

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