Surviving Spouse Rights

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.  

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?

Exempt property is generally property that cannot be claimed by creditors of the decedent if the decedent leaves a surviving spouse or descendants. Exempt property usually includes items like household furnishings, cars, and personal property up to a certain value. Like the other surviving spouse rights, the law regarding exempt property varies from state to state.

In Missouri, the surviving spouse is entitled absolutely to the following property of the estate without regard to its value: The family bible and other books, one automobile or other passenger motor vehicle, including a pickup truck, with its means of propulsion, all wearing apparel of the family, all household electrical appliances, all household musical and other amusement instruments and all household and kitchen furniture, appliances, utensils and implements. Such property shall belong to the surviving spouse, if any, otherwise to the unmarried minor children in equal shares.

In Florida, the surviving spouse can receive the exempt property. If decedent was not married, the children of the decedent can receive the exempt property. Exempt property in Florida includes:

  • 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

How is Jointly Held Property Handled?

The way that joint property is handled upon a decedent’s death depends on how the joint property was titled.If property is held jointly with rights of survivorship, the surviving owner continues to own the property after the decedent dies. For example, if real property is owned jointly by a husband and wife, the survivor will own the property upon the spouse’s death.

If property is owned without rights of survivorship, then the owners are usually considered tenants in common. This means that each owner owns a specific amount of the property. For example, if property is owned 50-50 as tenants in common, the decedent can pass their 50% share to beneficiaries upon decedent’s death. As a result, the survivor will own the property with the decedent’s beneficiaries. 

In some states, spouses can own property in special forms of joint ownership with rights of survivorship. Tenancy by the entirety is a type of joint ownership with rights of survivorship between married couples. Neither spouse has a greater interest in the property than that of the other. Half of the states, and the District of Columbia, recognize tenancy by the entirety ownership. However, some of the states only recognize tenancies by the entireties for real estate, and no other types of property.

Another type of joint ownership unique to spouses in some states is community property. Only nine states are “community property” states: Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin. Community property is property that is purchased or acquired by a couple during their marriage. Community property is owned equally by each spouse. In some of the community property states, spouses can opt to hold the property with survivorship rights.


Do Surviving Spouses Have Rights in Retirement Plans?

Surviving spouses may also have vested rights in retirement plans, pensions, 401(k) plans and IRA’s.  For example, a spouse may not remove a spouse as a beneficiary from many types of retirement plans without the other spouse’s consent.