What Are Your Rights If You’re Left Out of Your Spouse’s Will?

What Are Your Rights If You’re Left Out of Your Spouse’s Will?

October 19, 2021

Tanko Law Montana

The death of a spouse ranks as the most stressful life event a person can experience. As a surviving spouse, it is natural to be overwhelmed with grief, sadness, and despair. But imagine coping with the loss of your husband or wife and then discovering that they left you completely out of their will. Suddenly, you face the prospect of living alone without your spouse and without the assets you thought you would receive.


If you find yourself facing this grim set of circumstances, it is important to remain calm and seek the guidance of a trusted estate planning lawyer in Montana. By following these three steps, you can make the best of an unpleasant situation:


Step One: Contact a Montana wills lawyer right away. Do not delay.

Step Two: Learn about your rights as a surviving spouse. Your attorney will outline the assets to which you are entitled.

Step Three: File a right of election with the court. Your lawyer can guide you through this process to ensure you are compensated.


Do you have rights as a surviving spouse?


Yes. If you are left out of your spouse’s will, you have specific rights outlined by the state of Montana. The right to a portion of your spouse’s estate is called an “Elective Share” and is outlined in Montana Code 72-2-232:


“The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to 50% of the value of the marital-property portion of the augmented estate.”


– Montana Code Annotated 2021, 72-2-232


Could you possibly receive your spouse’s entire estate?


No. If your spouse has a legally executed will that omits you while designating assets to other living relatives and beneficiaries, then you are not eligible to receive the entire estate. The only circumstance under which a surviving spouse may inherit 100% of an estate is if the spouse fails to prepare a will altogether. In this case, you may receive 100% of the estate if your deceased spouse has no other living parents or descendants.


What portion of your spouse’s estate are you entitled to receive?


The answer depends on several factors, including your state of residence and the number of years you were married. In Montana, you can request an elective share that is equal to 50 percent of the augmented estate value. To determine the augmented estate value, you add the following together:


  1. Your deceased spouse’s net probate estate
  2. The sum of any nonprobate transfers from your deceased spouse to other people or creditors
  3. Any nonprobate transfers made to you as a surviving spouse
  4. Any property or nonprobate transfers you have made to others


After calculating the sum of these four figures, you multiply the result by a percentage that reflects the length of time you were married. In general, the share to which you are entitled increases with the total length of your marriage. For instance, a spouse who was married for two years would receive a smaller share than a spouse who was married for 10 years.


Why is acting quickly so important in Montana?


It is important to act swiftly because eligible petitioners have a limited timeframe within which they may file their election. If you let a year pass by before you decide to file your petition, your request will likely not be considered. Ideally, it is wise to speak with an attorney as soon as you discover you were left out of your spouse’s will.


“The election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within 9 months after the date of the decedent’s death or within 6 months after the probate of the decedent’s will, whichever limitation later expires.” –

 – Montana Code Annotated 2021, 72-2-241


Can you withdraw your request for an elective share?


Yes. You have the right as a surviving spouse to withdraw your petition for an elective share of your spouse’s estate. While this is not common, you have the right to withdraw your demand at any point in time prior to the court issues a final determination.


Are there any other rights that I have as a surviving spouse?


Yes. As a surviving spouse in Montana, you likely have rights to a homestead allowance, a family allowance, and possible property exemptions. A skilled estate lawyer can review your circumstances in detail to confirm whether you are eligible for these allowances and help you receive the maximum amount to which you are entitled.


What step should you take today to protect your future?


Clearly, there are many factors to consider if your spouse passes away without referencing you in their will. Fortunately, you are not powerless and have specific rights as a surviving spouse in Montana. The key is to take action right away – preferably before your spouse passes away.


The single best thing you can do to protect your future is to seek the guidance of an experienced estate planning attorney today. Tragedy can strike at anytime and it is up to you to ensure you are prepared. A Montana wills attorney will guide you through the simple steps to ensure you are protected in the event of your spouse’s passing. If you need a dependable wills lawyer in Kalispell, here are some specific ways an estate lawyer can help you protect your future:


  1. Prepare a will for you if you do not currently have one
  2. Update your existing will if you have experienced a major life change
  3. Help you establish a trust to ensure your assets are distributed according to your wishes
  4. Make sure your will is comprehensive and inclusive of all your assets
  5. Ensure your will is valid according to Montana law


We encourage you to contact us today to schedule a consultation with one of our estate planning lawyers. We look forward to serving as your trusted legal representative!

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Brian Tanko brings over 20 years of experience as an attorney, CPA, and Certified Fraud Examiner to every estate plan. Schedule a consultation to discuss your situation.

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