Disclaimer: General educational research only — not legal, tax or financial advice. Rules differ by state and by family. Talk to an estate planning attorney in your state before you act.
Estate Planning Data & Research → Surviving Spouse Elective Share by State
In most states, a will can’t simply cut out a husband or wife. A surviving spouse who is left little or nothing can usually claim a share set by state law, called an elective share, statutory share, forced share, or the right to renounce or waive the will. Community property states protect spouses a different way. And in a growing number of states, the spouse’s claim reaches accounts and trusts that never pass through the will.
This page lists the rule in every state and D.C., with the statute, and marks how each one was checked.
A will and a trust interact with spousal rights differently from state to state. Compare a trust and a will before you choose.
Downloads
Cite this page URL when reusing findings. Not a substitute for official sources or professional advice.
Key findings
- 40 states and D.C. let a surviving spouse claim a share against the will under an elective-share, statutory-share, dower or renunciation statute.
- 9 states use community or marital property instead: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin. There the surviving spouse already owns half of what the couple earned during the marriage, so there is no general elective share (Idaho and Wisconsin add an election for certain property).
- Georgia has no elective share. A surviving spouse can claim year’s support instead.
- In 22 jurisdictions, the share is figured on an augmented or elective estate that reaches at least some property outside the will, such as revocable trusts, joint accounts or payable-on-death accounts.
- Kentucky is the newest example. For deaths on or after July 15, 2026, Kentucky’s dower and curtesy statute (KRS 392.020, amended by 2026 Ky. Acts ch. 134, Senate Bill 50) counts beneficiary-designated, payable- or transfer-on-death, joint and revocable-trust assets, plus transfers within two years of death.
- Common shares are one-third or one-half; 12 jurisdictions scale the share by length of marriage, up to 50% in most of them.
Surviving spouse rights by state
| State | System | What a surviving spouse can claim against the will | Reaches assets outside the will? | Statute | Verification |
|---|---|---|---|---|---|
| Alabama | Elective share | Lesser of one-third of the estate or the whole estate minus the spouse’s own separate estate | Limited (spouse’s own assets count against the share) | Ala. Code § 43-8-70 | Partly verified |
| Alaska | Elective share (augmented estate) | One-third of the augmented estate; $50,000 supplemental floor | Yes | AS 13.12.202 | Verified |
| Arizona | Community property | No elective share; surviving spouse already owns half of community property | n/a | A.R.S. § 25-211 | Verified |
| Arkansas | Dower and curtesy | Spouse married more than 1 year may take against the will and receive dower or curtesy (with children: life estate in one-third of land plus one-third of personal property) | No | Ark. Code §§ 28-39-401; 28-11-301; 28-11-307 | Partly verified |
| California | Community property | No elective share; half of community and quasi-community property belongs to the surviving spouse | n/a | Cal. Prob. Code § 100 | Partly verified |
| Colorado | Elective share (augmented estate) | 50% of the marital-property portion of the augmented estate (portion grows with years married); $50,000 supplemental floor | Yes | C.R.S. § 15-11-202 | Verified |
| Connecticut | Statutory share | Life estate in one-third in value of property passing under the will | No | Conn. Gen. Stat. § 45a-436 | Verified |
| Delaware | Elective share (elective estate) | One-third of the elective estate, less transfers to the spouse | Yes | 12 Del. C. § 901 | Verified |
| District of Columbia | Renounce the will | Intestate share, not to exceed one-half of the net estate | No | D.C. Code § 19-113 | Verified |
| Florida | Elective share (elective estate) | 30% of the elective estate | Yes | Fla. Stat. § 732.2065 | Verified |
| Georgia | No elective share | No elective share; spouse may claim year’s support (property for 12 months of support) | n/a | O.C.G.A. § 53-3-1 | Partly verified |
| Hawaii | Elective share (augmented estate) | 50% of the marital-property portion of the augmented estate | Yes | HRS § 560:2-202 | Verified |
| Idaho | Community property | No general elective share; spouse owns half of community property; elective share applies only to certain quasi-community property | n/a | Idaho Code §§ 32-906; 15-2-202 | Verified |
| Illinois | Renounce the will | One-third of the estate if the decedent left a descendant; one-half if not | No | 755 ILCS 5/2-8 | Verified |
| Indiana | Elect against the will | One-half of net personal and real estate; less for a second or later childless spouse when the decedent left children from a prior marriage | No | Ind. Code § 29-1-3-1 | Verified |
| Iowa | Elective share | One-third of real property held during the marriage, exempt personal property, one-third of other personal property, and one-third of certain revocable-trust property | Partly (certain trust property) | Iowa Code § 633.238 | Verified |
| Kansas | Elective share (augmented estate) | Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years) | Yes | K.S.A. § 59-6a202 | Verified |
| Kentucky | Dower and curtesy (renounce the will) | One-half of surplus personal property (now including beneficiary-designated, POD/TOD, joint and revocable-trust assets and transfers within 2 years) plus a life estate in one-third of certain real estate; amended effective July 15, 2026 | Yes (since July 15 2026) | KRS 392.020 (2026 Ky. Acts ch. 134) | Verified |
| Louisiana | Community property | No elective share; each spouse owns a present undivided one-half of community property | n/a | La. Civ. Code art. 2336 | Verified |
| Maine | Elective share (augmented estate) | 50% of the marital-property portion of the augmented estate | Yes | 18-C M.R.S. § 2-202 | Verified |
| Maryland | Elective share (augmented estate) | One-third of the estate subject to election if there is surviving issue; one-half if not; reduced by spousal benefits | Yes | Md. Code Est. & Trusts § 3-403 | Verified |
| Massachusetts | Waive the will | With issue: one-third of personal and real property; with kin but no issue: $25,000 plus one-half of the rest; amounts over $25,000 limited to income for life in some cases | No | Mass. Gen. Laws ch. 191 § 15 | Verified |
| Michigan | Elect against the will | One-half of the intestate share, reduced by one-half of property received from the decedent outside the will | No | MCL 700.2202 | Verified |
| Minnesota | Elective share (augmented estate) | Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years) | Yes | Minn. Stat. § 524.2-202 | Verified |
| Mississippi | Renounce the will | Intestate share, capped at one-half of the estate | No | Miss. Code § 91-5-25 | Partly verified |
| Missouri | Elect against the will | One-third of the estate if lineal descendants survive; one-half if not | No | Mo. Rev. Stat. § 474.160 | Verified |
| Montana | Elective share (augmented estate) | 50% of the marital-property portion of the augmented estate; $75,000 supplemental floor | Yes | Mont. Code § 72-2-232 | Verified |
| Nebraska | Elective share (augmented estate) | Up to one-half of the augmented estate | Yes | Neb. Rev. Stat. § 30-2313 | Verified |
| Nevada | Community property | No elective share; neither spouse may will away more than half of community property | n/a | NRS 123.220; 123.230 | Verified |
| New Hampshire | Waive the will | With children or issue: one-third of personal and real estate; smaller fixed amounts plus fractions in other cases | No | RSA 560:10 | Verified |
| New Jersey | Elective share (augmented estate) | One-third of the augmented estate | Yes | N.J.S.A. 3B:8-1 | Verified |
| New Mexico | Community property | No elective share; surviving spouse owns half of community property | n/a | NMSA § 45-2-807 | Partly verified |
| New York | Right of election | Greater of $50,000 (or the whole net estate if smaller) or one-third of the net estate, including testamentary substitutes | Yes | EPTL 5-1.1-A | Verified |
| North Carolina | Elective share | Sliding scale by years married: 15% (under 5 years) to 50% (15+ years) of Total Net Assets, less property passing to the spouse | Yes | N.C. Gen. Stat. § 30-3.1 | Verified |
| North Dakota | Elective share (augmented estate) | 50% of the augmented estate | Yes | N.D. Cent. Code § 30.1-05-01 | Verified |
| Ohio | Elect against the will | Spouse may elect to take the intestate share under R.C. 2105.06 instead of the will | No | Ohio Rev. Code §§ 2106.01; 2105.06 | Verified |
| Oklahoma | Elect against the will | Undivided one-half of property acquired by joint industry during the marriage | No | 84 O.S. § 44 | Verified |
| Oregon | Elective share (augmented estate) | Sliding scale by years married, 5% to 33% of the augmented estate (33% at 15+ years) | Yes | ORS 114.605 | Verified |
| Pennsylvania | Elective share | One-third of listed property, including some revocable, joint and recent-gift property | Yes | 20 Pa.C.S. § 2203 | Verified |
| Rhode Island | Life estate | Life estate in the decedent’s real estate owned at death | No | R.I. Gen. Laws § 33-25-2 | Verified |
| South Carolina | Elective share | One-third of the probate estate | No | S.C. Code § 62-2-201 | Verified |
| South Dakota | Elective share (augmented estate) | Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years) | Yes | SDCL § 29A-2-202 | Verified |
| Tennessee | Elective share | Sliding scale by years married: 10% (under 3 years) to 40% (9+ years) of the net estate | No | Tenn. Code § 31-4-101 | Partly verified |
| Texas | Community property | No elective share; surviving spouse keeps own half of community property | n/a | Tex. Fam. Code § 3.002; Tex. Est. Code § 201.003 | Verified |
| Utah | Elective share (augmented estate) | One-third of the augmented estate | Yes | Utah Code § 75-2-202 | Partly verified |
| Vermont | Waive the will | One-half of the probate estate after allowances, claims and expenses | No | 14 V.S.A. § 319 | Verified |
| Virginia | Elective share (augmented estate) | 50% of the marital-property portion of the augmented estate (deaths on or after Jan. 1, 2017) | Yes | Va. Code § 64.2-308.3 | Verified |
| Washington | Community property | No elective share; community property is owned by both spouses | n/a | RCW 26.16.030 | Verified |
| West Virginia | Elective share (augmented estate) | Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years) | Yes | W. Va. Code § 42-3-1 | Verified |
| Wisconsin | Marital property | Spouse owns half of marital property; may elect up to 50% of the augmented deferred marital property estate | Partly (deferred marital property) | Wis. Stat. § 861.02 | Verified |
| Wyoming | Elective share | One-half of the probate estate, or one-quarter if the spouse is not a parent of any surviving issue of the decedent | No | Wyo. Stat. § 2-5-101 | Verified |
Verified = we read the current statute text on an official state legislature, code or court website. Partly verified = we read the statute text only through a reproduction of the code (such as Justia) or an official site we could not load directly; the rule shown matches that text, but confirm it with the official code. Partly verified: Alabama, Arkansas, California, Georgia, Mississippi, New Mexico, Tennessee, Utah.
What this means if you’re planning
- Leaving a spouse out of a will rarely works. If that’s the goal, the usual route is a prenuptial or postnuptial agreement that waives the elective share, signed with full disclosure.
- A trust may not avoid the claim. In augmented-estate states, a revocable trust counts. See trusts by state.
- Beneficiary forms can count too. See money that skips the will.
- Blended families need extra care. See life events that make a will outdated and will contest watch.
Related: the intestacy gap (what happens with no will) · estate planning law tracker
Methodology
We read the surviving-spouse statute for each of the 50 states and D.C. between Oct. 12, 2026 and publication, using official legislature, code or court websites where they loaded. Each row cites the section and links the source we read. The share column summarizes the main rule only; most statutes have deadlines, reductions for property the spouse already receives, waiver rules, residency rules and exceptions that are not shown. “Reaches assets outside the will” is our reading of whether the share is calculated on more than the probate estate.
What this doesn’t measure. Homestead, exempt-property and family-allowance rights, which exist in most states in addition to the shares shown, and deadlines for filing an election.
Frequently asked questions
Can I disinherit my spouse?
In most states, not completely by will alone. A surviving spouse can usually claim a share set by law, unless they waived it in a valid agreement.
What is an elective share?
The portion of an estate a surviving spouse may choose to take instead of what the will leaves them.
Which states have no elective share?
Community property states (Arizona, California, Louisiana, Nevada, New Mexico, Texas, Washington, with Idaho and Wisconsin using limited elections) and Georgia, which uses year’s support.
What changed in Kentucky?
For deaths on or after July 15, 2026, the spouse’s share of personal property counts many non-probate assets and recent transfers.
Is this legal advice?
No. Elective-share rules are technical and have strict deadlines. Talk to an estate planning attorney in your state.
Sources
Public-domain government sources only. Fetched 2026-10-12.
Statutes
Each state’s statute and the exact source link are in the table above and in the CSV download on this page. Official sources were used where they loaded; eight rows are marked Partly verified. – Kentucky 2026 Ky. Acts ch. 134 (SB 50): https://apps.legislature.ky.gov/law/acts/26RS/documents/0134.pdf
Cite this data
Family Estate Guide, “Elective Share by State: Surviving Spouse Rights Against a Will,” October 2026. https://familyestateguide.com/estate-planning-data/surviving-spouse-elective-share/
You’re welcome to reuse the table with a link back to this page. The underlying government data is public.
Published October 12, 2026 by Family Estate Guide. Data vintage: statutes read Oct. 12, 2026. Editorial standards.