The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

Surviving Spouse Rights Montana

A surviving spouse in Montana has important rights and benefits, including:

  • Homestead Allowance
  • Exempt Property
  • Spousal Allowance
  • Elective Share Rights

Surviving Spouse Rights If There Is No Valid Will – Intestate Estate

If a decedent dies without a valid will, they have died intestate.  An intestate estate is governed by Montana state law.  The widow’s share of the intestate estate depends on decedent’s other survivors.  MC  72-2-112.

  • Entire estate:  If decedent has no descendant or surviving parent, OR has descendants surviving, all of whom are descendants of the spouse, and the spouse has no separate descendants, then the surviving spouse has the right to the entire intestate estate.
  • Partial estate:  The surviving spouse is entitled to $200,000 plus 3/4 of the balance if decedent has surviving parents but no surviving descendants.  The surviving spouse is entitled to $150,000 plus 1/2 of the balance if all of decedent’s surviving descendants are those of the spouse and the spouse has one or more separate descendants surviving.  The surviving spouse is entitled to $100,000 plus 1/2 the balance if one or more surviving descendants of decedent are not those of the surviving spouse.

Surviving Spouse Elective Share – Election Against Will

If there was a will, but the surviving spouse was left an unsatisfactory amount or nothing at all, under Montana law the surviving spouse can elect to take an elective share. 

Under Montana law, a surviving spouse is entitled to take an elective share amount equal to 50% of the value of the marital property portion of the augmented estate.    A surviving spouse is entitled to a supplemental elective share amount under certain conditions.  MC 72-2-232.

The value of the augmented estate consists of the sum of the values of all property that constitute the decedent’s net probate estate (72-2-234); the decedent’s nonprobate transfers to others (72-2-235); the decedent’s nonprobate transfers to the surviving spouse (72-2-236); and the surviving spouse’s property and nonprobate transfers to others (72-2-237).

The value of the marital property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate, multiplied by the following percentage based on the length of the marriage. MC 72-2-233.

Length of the Marriage

Elective Share of the Augmented Estate

Less than 1 year

3%

1 year but less than 2 years

6%

2 years but less than 3 years

12%

3 years but less than 4 years

18%

4 years but less than 5 years

24%

5 years but less than 6 years

30%

6 years but less than 7 years

36%

7 years but less than 8 years

42%

8 years but less than 9 years

48%

9 years but less than 10 years

54%

10 years but less than 11 years

60%

11 years but less than 12 years

68%

12 years but less than 13 years

76%

13 years but less than 14 years

84%

14 years but less than 15 years

92%

15 years or more

100%

Surviving Spouse Allowances And Exemptions

A surviving spouse also has rights in Montana to a homestead allowance of $22,500 (72-2-412), a reasonable family allowance in money out of the estate for maintenance during administration (72-2-414), and exempt property of $15,000 in addition to the right of an elective share (72-2-413).