Surviving Spouse's Right to an Elective Share

This statute is effective for the surviving spouse of a decedent domiciled in Montana. He or she has the right to take an elective share amount equal to 50% of the value of the marital property portion of the augmented estate. The elective share of the marital estate increases in percentage from three to 100 percent, based on the length of the marriage (See Table 1).

To protect spouses against creditors' claims in small estates, there is a minimum elective share amount of up to $75,000.

The surviving spouse's right to an elective share of the marital portion and to the homestead allowance of $22,500, exempt property of $15,000, and family allowance of $27,000 (or any of them) may be waived wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse. The waiver is not enforceable if the surviving spouse proves that:

1. The waiver was not executed voluntarily.
2. The waiver was unconscionable when it was executed and, before execution of the waiver the surviving spouse:
   • Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent,
   • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligation of the decedent beyond the disclosure provided, and
   • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligation of the decedent.

The Montana Uniform Probate Code provides an extensive definition of the augmented estate. The definition is not provided here because of its substantial length. A copy can be obtained from an attorney, from the Montana Codes Annotated, from the State Law Library, or at a local library.

In general, the augmented estate includes:

1. the decedent's net probate estate;
2. the decedent's nonprobate transfers to others;
3. the decedent's nonprobate transfers to the surviving spouse; and
4. the surviving spouse's property and nonprobate transfers to others

The elective share provision is designed to make it difficult for a decedent to disinherit a surviving spouse intentionally by giving away all of his or her property or placing it in a trust shortly before death.

Table 1: Surviving Spouse's Elective-share Percentage of the Marital Portion of the Decedent's Estate