Can You Disinherit a Spouse in Utah? The Elective Share, Allowances, and Waivers
General information, not legal advice. Read the full disclaimer.
Short answer: Not completely. A surviving spouse of a Utah resident has a right of election to take an elective share equal to one-third of the "augmented estate" (Utah Code § 75-2-202), plus a supplemental elective share that brings the spouse up to $75,000 if the spouse would otherwise receive less. The augmented estate is broader than the probate estate: it adds many nonprobate transfers (such as certain transfers to others and property the spouse already owns). The spouse must petition the court within nine months after death (or six months after the will is probated, whichever is later) (§ 75-2-211). The right can be waived in writing, before or after marriage, and a valid prenuptial agreement or divorce settlement can do that (§ 75-2-213). A spouse is also entitled to separate allowances that have priority over most claims.
Who this guide is for
Utahns who want to leave their property to someone other than a spouse, spouses who learned they were left little or nothing, and couples planning a second marriage.
The elective share
- Amount. One-third of the value of the augmented estate (§ 75-2-202(1)).
- Supplement. If the spouse's elective-share receipts from the estate and from the spouse's own property and nonprobate benefits total less than $75,000, the spouse is entitled to the shortfall up to that figure (§ 75-2-202(2)).
- Allowances count against it. The spouse's homestead allowance, exempt property and family allowance are charged against, not added to, the elective-share and supplemental amounts if the right of election is exercised (§ 75-2-202(3)).
- Who qualifies. The surviving spouse of a decedent who dies domiciled in Utah; for a decedent domiciled elsewhere, the law of the domicile governs (§ 75-2-202(4)).
What is in the "augmented estate"
Under § 75-2-203, the augmented estate is the sum of the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's own property and nonprobate transfers to others, as provided in the sections that follow (§§ 75-2-204 through -208). In practice, assets that avoid probate — like certain accounts and trust property — may still be counted when computing the share, so moving property out of probate doesn't automatically defeat the right.
Deadlines
A petition for the elective share must be filed in court (and delivered to the personal representative) within nine months after the date of death, or within six months after probate of the will, whichever is later (§ 75-2-211(1)). If the petition comes after nine months from death, nonprobate transfers to others are excluded from the augmented estate for computing the share. Within nine months a spouse may ask the court for an extension for cause, giving notice to persons interested in the nonprobate transfers. The spouse may withdraw the demand before the court's final determination.
Allowances that exist regardless
Separate from the elective share, a surviving spouse is entitled to:
| Allowance | Amount | Priority |
|---|---|---|
| Homestead allowance (§ 75-2-402) | $22,500 | Exempt from and has priority over all claims of the estate |
| Exempt property (§ 75-2-403) | Up to $15,000 in household furniture, automobiles, furnishings, appliances and personal effects (in excess of security interests) | Priority over all claims |
| Family allowance (§ 75-2-404) | A reasonable money allowance for maintenance during administration (for the spouse and minor or dependent children), not longer than one year if the estate is inadequate to pay allowed claims | Priority over all claims except the homestead allowance |
If there is no surviving spouse, minor and dependent children get the homestead allowance, divided among them, and the exempt-property amount.
How a spouse can give up these rights
Under § 75-2-213, the right of election and the allowances may be waived, wholly or partly, before or after marriage, by a written contract, agreement or waiver signed by the surviving spouse. A waiver isn't enforceable if the spouse proves it wasn't voluntary, or it was unconscionable when signed and the spouse wasn't given fair disclosure of the other's property and obligations, didn't waive disclosure in writing, and didn't have (and couldn't reasonably have had) adequate knowledge. Unless the document says otherwise, a waiver of "all rights" or a complete property settlement in anticipation of separation or divorce waives elective share, homestead allowance, exempt property and family allowance. See Prenuptial Agreements in Utah and Property Division in a Utah Divorce.
What about children?
The sections we reviewed give a surviving spouse these rights; we did not review any provision giving adult children a forced share. Children who are minors or dependent may receive the allowances above. Other doctrines can protect children omitted from a will in some circumstances; ask an attorney.
Planning tips
- If you intend to leave less than one-third to your spouse, a written waiver negotiated with full disclosure is the safer route.
- If you remarry, update your will, trust and beneficiary designations. See Utah Will Requirements and Wills vs. Trusts in Utah.
- If a separation or divorce is pending, don't assume your spouse's rights have ended until a decree is entered.
- If you are the spouse, calendar the nine-month deadline immediately. See Utah's Probate Timeline and Contested Probate in Utah.
Frequently asked questions
Can I leave my spouse nothing in my Utah will?
You can write it, but the spouse may elect a one-third share of the augmented estate (and supplemental amount) unless a valid waiver applies.
How long does my spouse have to claim it?
Nine months after death, or six months after probate of the will if later, with a possible extension.
Does a prenup waive the elective share?
It can, if it contains a written waiver signed by the surviving spouse that meets § 75-2-213.
Do I need to probate the estate for the spouse to claim?
The election is made by petition in court; talk to an attorney about the process.