Each state provides surviving spouses with certain entitlements upon death. These rights can vary, so it is important to learn what is available in each state.
These surviving spouse rights can include the elective share, family allowance, personal property allowances, exempt property, and rights to the family residence.
If the couple was married for an extended period of time in a community property state, the surviving spouse may already own the community property from the marriage.
Select Your State for Surviving Spouse Rights
What is the Elective Share?
The elective share is a share of a decedent’s estate that a surviving spouse may claim in place of what the spouse was left in the decedent’s will. The law of the state where the decedent resided will govern the entitlement to and the amount of the elective share.
Generally, a surviving spouse will elect to take an elective share when the spouse is left out of the deceased spouse’s will, or was given a smaller share of the estate than what the elective share will provide.
The amount of the elective share will vary depending on the state laws that apply. In many states the elective share ranges between 30% and 50% of the elective estate. Some states base the amount of the elective share on the length of the marriage, if there are minor children, or if the surviving spouse is wealthy.
For example, in Florida a surviving spouse is entitled to an elective share equal to 30% of the elective estate, regardless of the length of the marriage. The elective estate includes the probate estate and other assets held by decedent at death, including joint accounts, property held in a trust, and property given away within one year of death.
In contrast, in Montana, the length of the marriage is considered. A surviving spouse who was married to the decedent between 1 and 2 years would be entitled to 3% of the elective estate, while a surviving spouse who was marred to the decedent for 15 or more years would be entitled to 50% of the elective estate.
What is Family Allowance?
Family allowance is an amount of a decedent’s money to which certain family members, generally the surviving spouse and children, are entitled from the probate estate. The purpose of the family allowance is to help support the surviving spouse and children during the administration of the decedent’s estate. The amount of the family allowance varies greatly from state to state.
For example, in Texas, a surviving spouse can request an allowance from the estate for up to $45.000 if there is no homestead.
In Florida, a surviving spouse can request up to$18,000, payable in a lump sum or in installments.
In Alabama, the family allowance can be up to $15,000, which can be paid out in a lump sum or in periodic installments of up to $500/month.
What is Exempt Property?
- Household furnishings at the usual place of abode, valued at no more than $20,000
- Two motor vehicles held in the decedent’s name and regularly used by the decedent and or members of the immediate family. Each vehicle cannot weight more than 15,000 pounds.
- Qualified tuition programs under Section 529 of the Internal Revenue Code
- Certain types of educator death benefits