Rights of a Surviving Spouse

Question 1

Homestead

Answer 1

160 acres of land if rural

1/2 acre if within limits incorporated city or town

Question 2

Exempt personal property

Answer 2

Surviving spouse or children entitled to 20k worth of tangible personal property and all qualified tuition programs UNLESS these items were specifically devised to someone else.

If decedent was not survived by spouse or children, this option is not available.

Question 3

Family Allowance

Answer 3

18K for support of surviving spouse or lineal heirs whom decedent was obligated to support or whom decedent was actually supporting. Purpose is to provide support while assets are tied up on probate.

Question 4

Waiver of Elective Share

Answer 4

Right to elective share may be waived by written contract, agreement, or waiver. Fair disclosure of extent of estate required if waiver after marriage, but not waiver made before marriage.

Question 5

Elective Share Trust

Answer 5

A trust created by the decedent for the spouse’s benefit. Spouse must have the right to income for life. If trustee has power to distribute principal for the spouse’s health, support and maintenance, reduce elective share by an amount equal to 80 percent of the value of the trust. If the trustee has no such power, reduce elective share by 50 percent of the trust.