Utah provides surviving spouses with guaranteed widow’s rights and entitlements to a decedent’s estate, including:
- Intestate Share
- Spousal Allowance
- Homestead Allowance
- Exempt Property
- Elective Share
What Are Surviving Spouse Rights In Utah When There Is No Will?
When a decedent dies without a will, they have died intestate. In an intestate estate, Utah law governs the distribution of decedent’s assets, including the widow’s share. Utah Probate Code 75-2-102.
The surviving spouse in Utah receives the entire estate if there are no living descendants, or all of the living descendants of the deceased are also descendants of the surviving spouse.
If the deceased has living descendants who are not also descendants of the surviving spouse, the surviving spouse is entitled to $75,000, plus one-half of the balance of the estate.
Any money or property that the surviving spouse receives outside of probate, for example jointly titled accounts, are added to the probate estate in determining its total value, and the property received by the surviving spouse outside of probate are treated as advancements against the spouse’s intestate share. See the Assets of the Deceased guide for more information.
Spousal Allowance and Exempt Property
The surviving spouse in Utah is entitled to: (a) homestead allowance of $22,500, (b) exempt property not exceeding $15,000 in value, household furnishings, automobiles, and personal effects.
The surviving spouse in Utah is also entitled to a reasonable maintenance allowance during the period of administration, for up to one year if the estate is insolvent.
All allowances are chargeable against elective share. Utah Probate Code 75-2-402, 75-2-403, and 75-2-404.
Utah Elective Share
Right to Elective Share
A surviving spouse in Utah may take an elective share amount equal to the value of either (a) 1/3 of the augmented estate or, (b) a supplemental elective share amount equal to $75,000 less (i) amounts passing from the augmented estate to the spouse under Utah Probate Code 75-2-209 and (ii) elective share payable from decedent’s probate/non-probate transfers to others.
Property Subject to Elective Share
The elective or augmented estate in Utah includes the sum of the value of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute (a) decedent’s “net probate estate”; (b) decedent’s non-probate transfers to others and to spouse, (c) spouse’s property and non-probate transfers to others. Utah Probate Code 75-2-203.
The Net Probate Estate is the decedent’s probate estate reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable creditor claims against the estate. Utah Probate Code 75-2-204.
Satisfaction of Elective Share
Satisfaction of the elective share is done in layers. Each layer is exhausted before moving to the next layer. The layers are listed by the order in which the elective share is satisfied.
- amounts included in the estate passing to spouse by testate or intestate succession and non-probate transfers to spouse
- spouse’s property and non-probate transfers to others included in the augmented estate
- decedent’s separate property passing to spouse at death
- spouse’s homestead allowance, exempt property, and family allowance
- the probate estate and non-probate transfers to others
Liability is equitably apportioned among recipients of probate estate and non-probate transfers. If the foregoing is insufficient, balance is paid from remaining portion of decedent’s non-probate transfers, and equitably apportioned among the recipients.
Deadline for Election
The surviving spouse must make the elective share election within nine months after the date of decedent’s death, or within six months after the probate of decedent’s will, whichever occurs later. If an elective share petition is filed later than nine months after death, decedent’s nonprobate transfers to others are excluded from the augmented estate. Utah Probate Code 75-2-211.
The court may extend the deadline for making the elective share election upon the spouse’s petition for additional time and for good cause; if court award’s spouse additional time to elect, decedent’s non-probate transfers to others are included in the elective share estate.
How is the Elective Share Election Made in Utah?
The petition for elective share must be filed in the court and mailed or delivered to the personal representative, if any.
The elective share petition must be filed during the surviving spouse’s lifetime by the spouse, personally, or by spouse’s conservator, guardian, or attorney-in-fact. If the elective share election is exercised on behalf of incapacitated spouse, elective share is set aside in trust for the spouse’s benefit.
