Chapter 5 - Rights Of Surviving Spouse
CHAPTER 5 - RIGHTS OF SURVIVING SPOUSE
2-5-101. Elective share of property.
(a) If a married person domiciled in this state shall by willdeprive the surviving spouse of more than the elective share, as hereafter setforth, of the property which is subject to disposition under the will, reducedby funeral and administration expenses, homestead allowance, family allowancesand exemption, and enforceable claims, the surviving spouse has a right ofelection to take an elective share of that property as follows:
(i) One-half (1/2) if there are no surviving issue of thedecedent, or if the surviving spouse is also a parent of any of the surviving issueof the decedent; or
(ii) One-fourth (1/4), if the surviving spouse is not the parentof any surviving issue of the decedent.
(b) If a married person not domiciled in this state dies, theright, if any, of the surviving spouse to take an elective share in property inthis state is governed by the law of the decedent's domicile at death.
(c) If the surviving spouse of a married person domiciled inthis state dies or becomes incompetent within three (3) months after the willis admitted to probate or before being advised of the right of election as inW.S. 2-5-104 provided, a personal representative or guardian of the estate ofthe deceased or incompetent surviving spouse has the same right of election asthe surviving spouse would have had if living or competent.
(d) If the surviving spouse or his personal representative orguardian fails to exercise the right of election within the time provided inW.S. 2-5-105, the will shall govern and control the distribution of the estate.
2-5-102. Waiver of right of election and homestead allowance.
Theright of election of a surviving spouse and the rights of the surviving spouseto homestead allowance, exempt property and family allowance, or any of them,may be waived totally or partially before or after marriage, by a writtencontract, agreement or waiver signed by the party waiving, after fairdisclosure. Unless it provides to the contrary a waiver of "allrights" (or equivalent language) in the property or estate of a present orprospective spouse, or a complete property settlement entered into after or inanticipation of separation or divorce, is a waiver of all rights to electiveshare, homestead allowance, exempt property and family allowance by each spousein the property of the other and a renunciation by each of all benefits whichwould otherwise pass to one from the other by intestate succession or by virtueof the provisions of any will executed before the waiver or propertysettlement.
2-5-103. Homestead allowance, exempt property and family allowance;exception.
Asurviving spouse is entitled to homestead allowance, exempt property and familyallowance whether or not he elects to take an elective share and whether or nothe renounces the benefits conferred upon him by the will except that, if itclearly appears from the will that a provision therein made for the survivingspouse is intended to be in lieu of these rights, he is not so entitled if hedoes not renounce the provisions made for him in the will.
2-5-104. Duty of court to advise as to right of election.
(a) If the surviving spouse has a right of election under W.S.2-5-101, then at any time after the filing of an inventory and not more thanthree (3) months after the admission of the will to probate, the court shalladvise the surviving spouse of his right of election and shall explain fullythe right and that in the event of the failure to exercise the right ofelection the will shall govern and control the distribution of the estate.
(b) If the surviving spouse dies or becomes incompetent beforethe court has advised him of his right of election and has not, prior to deathor incompetency, filed a waiver or renunciation of the right of election, thecourt shall advise the personal representative or guardian of the estate of thedeceased or incompetent surviving spouse of the right of election as providedin subsection (a) of this section.
2-5-105. Time limit and procedure for elective share.
(a) The surviving spouse, or a personal representative orguardian of the estate of a deceased or incompetent surviving spouse, may electto take his elective share in the estate by filing in the court and mailing ordelivering to the personal representative, if any, a petition for the electiveshare within three (3) months after the admission of the will to probate orwithin thirty (30) days after being advised of the right of election, whicheverlimitation last expires. In the event of a failure to file a petition withinthe foregoing time limitation the will governs and controls the distribution ofthe estate.
(b) After the filing of a petition to elect to take an electiveshare, the court shall set the petition for hearing and the surviving spouse,or his personal representative or guardian, shall give notice by certified mailnot less than twenty (20) days before the date of hearing of the time and placeset for hearing to all persons whose interest will be adversely affected by thetaking of the elective share.
(c) After notice and hearing the court shall determine theright to the elective share and shall order its payment from assets of theestate. An assignment or allotment of assets by the personal representative tothe elective share need not be made until the entry of a decree of distributionor such other time as may be designated by the court.
(d) The surviving spouse or his personal representative orguardian may withdraw his demand for an elective share at any time before entryof a final determination by the court of the right to an elective share.
(e) Any time after having been advised of the right ofelection, the surviving spouse or his personal representative or guardian mayfile with the court a renunciation or waiver of the right of election in whichevent the will shall govern and control the distribution of the estate.