Elective Share by State: Surviving Spouse Rights Against a Will

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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.

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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

StateSystemWhat a surviving spouse can claim against the willReaches assets outside the will?StatuteVerification
AlabamaElective shareLesser of one-third of the estate or the whole estate minus the spouse’s own separate estateLimited (spouse’s own assets count against the share)Ala. Code § 43-8-70Partly verified
AlaskaElective share (augmented estate)One-third of the augmented estate; $50,000 supplemental floorYesAS 13.12.202Verified
ArizonaCommunity propertyNo elective share; surviving spouse already owns half of community propertyn/aA.R.S. § 25-211Verified
ArkansasDower and curtesySpouse 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)NoArk. Code §§ 28-39-401; 28-11-301; 28-11-307Partly verified
CaliforniaCommunity propertyNo elective share; half of community and quasi-community property belongs to the surviving spousen/aCal. Prob. Code § 100Partly verified
ColoradoElective share (augmented estate)50% of the marital-property portion of the augmented estate (portion grows with years married); $50,000 supplemental floorYesC.R.S. § 15-11-202Verified
ConnecticutStatutory shareLife estate in one-third in value of property passing under the willNoConn. Gen. Stat. § 45a-436Verified
DelawareElective share (elective estate)One-third of the elective estate, less transfers to the spouseYes12 Del. C. § 901Verified
District of ColumbiaRenounce the willIntestate share, not to exceed one-half of the net estateNoD.C. Code § 19-113Verified
FloridaElective share (elective estate)30% of the elective estateYesFla. Stat. § 732.2065Verified
GeorgiaNo elective shareNo elective share; spouse may claim year’s support (property for 12 months of support)n/aO.C.G.A. § 53-3-1Partly verified
HawaiiElective share (augmented estate)50% of the marital-property portion of the augmented estateYesHRS § 560:2-202Verified
IdahoCommunity propertyNo general elective share; spouse owns half of community property; elective share applies only to certain quasi-community propertyn/aIdaho Code §§ 32-906; 15-2-202Verified
IllinoisRenounce the willOne-third of the estate if the decedent left a descendant; one-half if notNo755 ILCS 5/2-8Verified
IndianaElect against the willOne-half of net personal and real estate; less for a second or later childless spouse when the decedent left children from a prior marriageNoInd. Code § 29-1-3-1Verified
IowaElective shareOne-third of real property held during the marriage, exempt personal property, one-third of other personal property, and one-third of certain revocable-trust propertyPartly (certain trust property)Iowa Code § 633.238Verified
KansasElective share (augmented estate)Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years)YesK.S.A. § 59-6a202Verified
KentuckyDower 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, 2026Yes (since July 15 2026)KRS 392.020 (2026 Ky. Acts ch. 134)Verified
LouisianaCommunity propertyNo elective share; each spouse owns a present undivided one-half of community propertyn/aLa. Civ. Code art. 2336Verified
MaineElective share (augmented estate)50% of the marital-property portion of the augmented estateYes18-C M.R.S. § 2-202Verified
MarylandElective share (augmented estate)One-third of the estate subject to election if there is surviving issue; one-half if not; reduced by spousal benefitsYesMd. Code Est. & Trusts § 3-403Verified
MassachusettsWaive the willWith 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 casesNoMass. Gen. Laws ch. 191 § 15Verified
MichiganElect against the willOne-half of the intestate share, reduced by one-half of property received from the decedent outside the willNoMCL 700.2202Verified
MinnesotaElective share (augmented estate)Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years)YesMinn. Stat. § 524.2-202Verified
MississippiRenounce the willIntestate share, capped at one-half of the estateNoMiss. Code § 91-5-25Partly verified
MissouriElect against the willOne-third of the estate if lineal descendants survive; one-half if notNoMo. Rev. Stat. § 474.160Verified
MontanaElective share (augmented estate)50% of the marital-property portion of the augmented estate; $75,000 supplemental floorYesMont. Code § 72-2-232Verified
NebraskaElective share (augmented estate)Up to one-half of the augmented estateYesNeb. Rev. Stat. § 30-2313Verified
NevadaCommunity propertyNo elective share; neither spouse may will away more than half of community propertyn/aNRS 123.220; 123.230Verified
New HampshireWaive the willWith children or issue: one-third of personal and real estate; smaller fixed amounts plus fractions in other casesNoRSA 560:10Verified
New JerseyElective share (augmented estate)One-third of the augmented estateYesN.J.S.A. 3B:8-1Verified
New MexicoCommunity propertyNo elective share; surviving spouse owns half of community propertyn/aNMSA § 45-2-807Partly verified
New YorkRight of electionGreater of $50,000 (or the whole net estate if smaller) or one-third of the net estate, including testamentary substitutesYesEPTL 5-1.1-AVerified
North CarolinaElective shareSliding scale by years married: 15% (under 5 years) to 50% (15+ years) of Total Net Assets, less property passing to the spouseYesN.C. Gen. Stat. § 30-3.1Verified
North DakotaElective share (augmented estate)50% of the augmented estateYesN.D. Cent. Code § 30.1-05-01Verified
OhioElect against the willSpouse may elect to take the intestate share under R.C. 2105.06 instead of the willNoOhio Rev. Code §§ 2106.01; 2105.06Verified
OklahomaElect against the willUndivided one-half of property acquired by joint industry during the marriageNo84 O.S. § 44Verified
OregonElective share (augmented estate)Sliding scale by years married, 5% to 33% of the augmented estate (33% at 15+ years)YesORS 114.605Verified
PennsylvaniaElective shareOne-third of listed property, including some revocable, joint and recent-gift propertyYes20 Pa.C.S. § 2203Verified
Rhode IslandLife estateLife estate in the decedent’s real estate owned at deathNoR.I. Gen. Laws § 33-25-2Verified
South CarolinaElective shareOne-third of the probate estateNoS.C. Code § 62-2-201Verified
South DakotaElective share (augmented estate)Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years)YesSDCL § 29A-2-202Verified
TennesseeElective shareSliding scale by years married: 10% (under 3 years) to 40% (9+ years) of the net estateNoTenn. Code § 31-4-101Partly verified
TexasCommunity propertyNo elective share; surviving spouse keeps own half of community propertyn/aTex. Fam. Code § 3.002; Tex. Est. Code § 201.003Verified
UtahElective share (augmented estate)One-third of the augmented estateYesUtah Code § 75-2-202Partly verified
VermontWaive the willOne-half of the probate estate after allowances, claims and expensesNo14 V.S.A. § 319Verified
VirginiaElective share (augmented estate)50% of the marital-property portion of the augmented estate (deaths on or after Jan. 1, 2017)YesVa. Code § 64.2-308.3Verified
WashingtonCommunity propertyNo elective share; community property is owned by both spousesn/aRCW 26.16.030Verified
West VirginiaElective share (augmented estate)Sliding scale by years married, 3% to 50% of the augmented estate (50% at 15+ years)YesW. Va. Code § 42-3-1Verified
WisconsinMarital propertySpouse owns half of marital property; may elect up to 50% of the augmented deferred marital property estatePartly (deferred marital property)Wis. Stat. § 861.02Verified
WyomingElective shareOne-half of the probate estate, or one-quarter if the spouse is not a parent of any surviving issue of the decedentNoWyo. Stat. § 2-5-101Verified

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

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.