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

Surviving spouses in Mississippi have important rights, including:

  • Intestate Share
  • Family Allowance
  • Exempt Property
  • Elective Share
  • Homestead Exemption

What are a Surviving Spouse’s Rights in Mississippi When There Is No Will?

If a decedent in Mississippi has died without a valid will, they have died intestate.  In an intestate estate, Mississippi law controls the distribution of Decedent’s assets.  The widow’s share of an intestate estate depends on whether or not the decedent had surviving children or descendants.  See Miss. Code 91-1-7.

Entire Estate

The surviving spouse is entitled to the entire estate if the decedent has no surviving children or descendants.

Partial Estate

If the decedent has surviving children or descendants, then the surviving spouse receives a child’s share of the estate.

Surviving Spouse Rights To Allowances and Exemptions

The Mississippi Code provides for a one year support allowance.  The support allowance is determined by court-appointed appraisers. Miss. Code 91-7-135.

The surviving spouse is also entitled to exempt property.  The exempt property is to be set apart by appraisers. Miss. Code 91-7-117.

Mississippi law also contains a Homestead exemption statute which provides that a surviving spouse has an absolute right to occupy the marital home for the duration that he or she remains unmarried following the decedent’s death. This statute also provides strong protections in favor of the surviving spouse on the deceased spouse’s ability to devise the homestead to another.

Elective Share Rights

If decedent died with a will, the surviving spouse can elect to renounce the will.  The surviving spouse might want to do this when the surviving spouse is left out of the will, or is unsatisfied with the provisions made for them in the will.  The spouse can then elect against the will.

This election must be made within 90 days after probate of the will. Miss. Code § 91-5-25.

This elective share is the share the surviving spouse would have received had the deceased died without a will (intestate); however, the elective share may not exceed one-half of the estate.  If the surviving spouse has separate property which equals or exceeds what he or she would receive as the elective share, the surviving spouse does not have a right of election against the will.  Miss. Code 91-5-29.

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