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Elective Share of Surviving Spouse

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In Utah, a surviving spouse has a right to a share of the deceased spouse’s estate unless the surviving spouse has specifically waived that right.  Absent a waiver, one spouse or his or her children cannot stop the surviving spouse from receiving this share.  If both spouses’ children are mutual to each other (meaning the deceased spouse has no children from a prior marriage or relationship) the surviving spouse receives the entire deceased spouse’s estate.

If both spouses’ children are not mutual to each other (meaning they have a blended family and at least one of the deceased spouse’s children is not also the surviving spouse’s child) the surviving spouse receives a certain percentage of the deceased spouse’s estate.  This percentage is an augmented share based on a calculation involving a somewhat complex formula including a homestead, family allowance, and exempt property as factors.  It is intended, depending on the size of the estate, that the surviving spouse will receive up to $75,000.00 and then a percentage of the remaining estate and the deceased person’s children will receive the other percentage.

A probate will likely need to be filed to formally determine the decedent’s heirs and the amount of the elective share.  As noted, the calculation for how much a surviving spouse will receive is somewhat complicated and depends on the size and type of property in the estate.  It is best to have an experienced attorney discuss these matters with you in detail and help determine the amount of the elective share.  Please contact the attorneys at Slemboski & Tobler for such a consultation and analysis.

Click here to view the Utah Probate Code section on Elective Share of Surviving Spouse.