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Surviving Spouse Rights Montana

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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.

  • 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, as the spousal elective share the value of the elective share percentage of the augmented estate determined according to the following schedule:
Length of the Marriage
Elective Share of the Augmented Estate
Less than 1 year
Supplemental amount only.
1 year but less than 2 years
3%
2 years but less than 3 years
6%
3 years but less than 4 years
9%
4 years but less than 5 years
12%
5 years but less than 6 years
15%
6 years but less than 7 years
18%
7 years but less than 8 years
21%
8 years but less than 9 years
24%
9 years but less than 10 years
27%
10 years but less than 11 years
30%
11 years but less than 12 years
34%
12 years but less than 13 years
38%
13 years but less than 14 years
42%
14 years but less than 15 years
46%
15 years or more
50%

Surviving Spouse Allowances And Exemptions

A surviving spouse is also entitled to the homestead allowance of $20,000, family allowance of $18,000, and exempt property of $10,000 in addition to the right of an elective share. 
If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts. 72-2-221(3), MCA.

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