Probate, trust, guardianship and inheritance litigation
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Surviving Spouse Rights Iowa

When a married Iowan dies, Iowa law provides the widow important surviving spouse rights, including:

  • Intestate Share
  • Support Allowance
  • Elective Share
  • Exempt Personal Property
  • Homestead

What if My Spouse Died Without a Will (Intestacy) In Iowa?

If someone dies without a will they have died intestate.  In Iowa, when a spouse dies intestate, Iowa law provides the surviving spouse with rights to all or a portion of the decedent’s estate.  The share of the estate that goes to the surviving spouse depends on whether decedent had descendants, and whether those descendants are also descendants of the surviving spouse.

Surviving Spouse Rights  – Decedent Has No Surviving Descendants Or All Surviving Descendants are also Surviving Spouse’s Descendants

If a decedent dies with no children, or all of decedent’s children are also the surviving spouse’s children, then the surviving spouse is entitled to the entire intestate estate.  Iowa Code 633-211.

Surviving Spouse Rights – Decedent Has Surviving Descendants That Are Not Surviving Spouse’s Descendants

If the decedent dies with children that are not also the children of the surviving spouse, the surviving spouse does not have the right to the entire estate under Iowa law.  Instead, the surviving spouse receives ½ of all decedent’s real property, all of decedent’s personal property as head of family, and ½ of the rest of decedent’s personal property after payment of debts and charges.   If the value of foregoing is less than $50,000, the surviving spouse receives an additional homestead interest and the decedent’s remaining real and personal property after payment of debts and charges.  See Iowa Code 633.212.

Surviving Spouse Allowances and Exemptions

Under Iowa law, the surviving spouse is entitled to 12-months of support following the death of the decedent.  The personal representative of the estate is required to send a notice to the surviving spouse regarding the right to request a spousal allowance.  The surviving spouse has four months from service of the notice to apply for the support allowance.  See Iowa Code 633.374.  This allowance is without regard to a surviving spouse’s elective share.  The Iowa Supreme Court has determined that a decedent’s individual retirement accounts cannot be used to pay the allowance to the surviving spouse who was not a beneficiary of those accounts.  See Estate of Gantner.

A surviving spouse also has the right to exempt personal property of a decedent under Iowa Law.  See Iowa Code 633.332.

Right to Take an Elective Share

In Iowa, when a decedent dies testate (with a will), the surviving spouse can elect to take against the will.  This is called an election to take an elective share.  The elective share law in Iowa makes sure that the surviving spouse gets a minimum amount of the deceased spouse’s estate.

The surviving spouse is generally entitled to 1/3 of the value of certain property of the deceased spouse.  This property may include personal property, real estate, and property held in trust.  See Iowa Code 633.238.  Iowa law presumes that the surviving spouse is taking the inheritance under the will until the surviving spouse files a claim for the elective share.

Deadline for Election:

The surviving spouse must file an elective share election within four months from the date of service by either the personal representative of the estate or from the trustee of decedent’s revocable trust.  If the surviving spouse does not file within the four month window, Iowa law presumes that the spouse will take under the will or trust.

Surviving Spouse Election to Receive Homestead

A surviving spouse who elects to take an elective share, or the surviving spouse of an intestate decedent, is also entitled to elect a life estate in decedent’s homestead real property.  An election to receive homestead is in lieu of a share of decedent’s real property owned during the marriage.  Iowa Code 633.240.

The deadline to receive a life estate in the homestead is presumed to be waived if an election is not served within four months from the date of service of notice from the personal representative or trustee under Iowa law.  Iowa Code 633.237.

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