Surviving Spouse Elective Share in Montana

A person can leave a will that gives a spouse very little, but Montana law limits how far that choice can go. The elective share lets a surviving spouse claim a set portion of the estate instead of what the will provides. The questions below explain how it works for Great Falls families and why it matters in an estate plan.

What Is the Elective Share in Montana?

The elective share is a surviving spouse’s right to take a fixed portion of the estate no matter what the will says. A surviving spouse of a Montana resident may elect to take 50 percent of the marital-property portion of the augmented estate, according to Montana Code Section 72-2-232. The augmented estate looks beyond the will to include certain transfers made outside probate.

What Is the Supplemental Amount?

The statute also protects spouses of small estates. If the amounts counted toward the spouse fall short of $75,000, the spouse receives a supplemental amount that makes up the difference. That floor applies even when the percentage formula would produce less.

Does the Spouse Receive Other Allowances Too?

Yes. The homestead allowance, exempt property, and family allowance aren’t charged against the elective share. The spouse receives them in addition, separate from the 50 percent calculation.

How Long Does a Spouse Have to Petition?

Montana Code Section 72-2-241t sets the deadline: nine months after the death or six months after the will is admitted to probate, whichever expires later. A petition filed after nine months can exclude certain nonprobate transfers from the augmented estate, which shrinks what the spouse can reach.

The spouse may ask for more time within the nine months, and the court can grant it for cause shown. Anyone considering an election should involve a Great Falls probate lawyer quickly, since a missed date can cost real value.

Can a Spouse Give Up the Right in Advance?

Yes, but only in writing. A spouse can waive the right of election through a signed agreement made before or after the marriage. A spouse can later challenge the waiver by showing it was involuntary, that the spouse had no access to independent legal advice, or that financial disclosure was inadequate.

Waivers can matter in second marriages, where each spouse wants to protect children from an earlier relationship. For couples facing care needs, a Great Falls elder law attorney can help weigh a waiver against the needs of an aging spouse.

How Does This Relate to Disinheritance?

The elective share protects a spouse, not other relatives, so a parent who wants to leave a child out of a plan should understand the rules about disinheriting a child in Montana. Leaving someone out on purpose takes careful drafting.

When there is no will, intestate succession rules decide who inherits. Those default rules may not match what the person wanted.

Do Trusts and Other Assets Count?

The augmented estate reaches transfers outside probate, so a trust doesn’t automatically keep property away from a spouse’s election. For trust assets, a Great Falls trust lawyer can explain how they fit into the calculation and whether a different structure serves the family better. Other assets with co-owners or named beneficiaries deserve a review too, because how they’re titled affects what passes outside the will.

What Should an Estate Plan Do About It?

A good plan accounts for the spouse’s rights from the start, rather than leaving them as a surprise. To see whether an election could upset the plan, a Great Falls estate planning lawyer can review the will, the beneficiary designations, and any marital agreement.

Questions worth asking include:

• Does the plan leave the spouse enough to avoid an election?
• Would a marital agreement change the outcome?
• Do beneficiary designations match the intended plan?
• Has anyone updated the plan since the last major life change?

Who Practices Estate Law at the Firm?

Steve Darty founded Montana Elder Law, Inc. in 2012 and holds a J.D. from the University of Montana and an LL.M. from Stetson University. He belongs to the State Bar of Montana’s Trust and Estates Section and the Western Montana Estate Planning Council.

What Is the Next Step?

Collect the will, any marital agreement, and a list of accounts with named beneficiaries. A Great Falls family can speak with us about how the elective share applies to their own situation.