Iowa Spousal Elective Share: Your Right to One-Third of the Estate Even if the Will Says Otherwise

Iowa law prohibits the complete disinheritance of a surviving spouse. Regardless of what a will says — even a will that leaves everything to adult children from a prior marriage, a charity, or a business partner — the surviving spouse has the legal right to claim a minimum share of the estate.

This right is called the spousal elective share. If you're a surviving spouse and the will doesn't adequately provide for you, this may be the most important legal protection you have.

What the Iowa Elective Share Is

Under Iowa Code Section 633.238, a surviving spouse who elects against the will is entitled to receive:

1. One-third in value of all real property that the decedent possessed during the marriage
2. All exempt personal property that the decedent held as head of the family (certain household items, tools, and personal effects)
3. One-third of all other personal property that is not necessary for the payment of debts and charges

This is a floor, not a ceiling. If the will provides more than one-third, the surviving spouse takes what the will gives. If the will provides less — or nothing — the surviving spouse can elect against the will and claim the statutory minimum.

The elective share applies to the estate as a whole. The surviving spouse doesn't pick which assets to take; the probate court adjusts the distribution to give the spouse their one-third entitlement.

What Triggers the Elective Share

The elective share comes into play in situations where the deceased spouse either:

• Deliberately minimized the surviving spouse's inheritance (sometimes in estates involving prior marriages and stepchildren)
• Executed a will long ago that no longer reflects the current marital situation
• Attempted to leave assets to other beneficiaries in a way that leaves the surviving spouse with less than one-third of the estate's value

In many traditional Iowa estates, the will provides the surviving spouse with everything or more than a third, so the elective share is irrelevant. It becomes critical when the will is structured around protecting assets for children from a prior marriage, a business, or other non-spousal beneficiaries.

The Elective Share Reaches Revocable Trusts

This is the most important — and least understood — aspect of Iowa's elective share law.

Iowa courts have established that the elective share applies not just to probate assets but also to assets held in a revocable trust created by the deceased spouse. This prevents a person from funneling assets into a trust during their lifetime specifically to circumvent the spousal protections.

A husband who transfers his farmland, investments, and real estate into a revocable trust with adult children named as beneficiaries, then dies with a minimal probate estate, cannot thereby defeat the surviving spouse's right to one-third. The surviving spouse can elect against the combined estate — the probate assets plus the trust assets — to claim her share.

This protection is essential in blended families where planning has been done specifically to benefit children from a prior relationship at the expense of the current spouse.

The Four-Month Deadline to Claim the Elective Share

The elective share is not automatic. The surviving spouse must affirmatively claim it within a specific time window.

Under Iowa Code 633.374, the surviving spouse must petition the court to claim the elective share within four months of receiving formal notice of probate.

This is a strict deadline. Missing it typically results in forfeiture of the right to elect — the surviving spouse must accept whatever the will provides.

The four-month clock runs from the date the surviving spouse receives a copy of the notice of probate from the executor, not from the date of death. However, waiting until the deadline approaches is dangerous. The surviving spouse needs time to evaluate the estate, understand what one-third represents in dollar terms, and decide whether electing provides more than accepting the will's provisions.

A surviving spouse who is uncertain should consult an estate attorney immediately upon learning that the will does not adequately provide for them — don't wait to see if the situation "works out."

The Family Allowance: Separate from the Elective Share

Iowa law also provides a temporary family allowance for a surviving spouse and dependent children during the estate administration period. This is a short-term financial lifeline, not a share of the estate.

The allowance is designed to cover living expenses while the estate is frozen and assets are being administered. It is paid out of estate funds and is treated as an administrative expense — it has priority over general creditor claims.

The surviving spouse must petition the court to receive the family allowance. The court determines a reasonable amount based on the surviving spouse's needs and the size of the estate.

This allowance is in addition to — not instead of — the elective share. A surviving spouse can claim both.

How the Elective Share Interacts with the 2025 Inheritance Tax Repeal

Iowa's inheritance tax was repealed for all deaths occurring on or after January 1, 2025. This repeal has no effect on the elective share mechanism.

The inheritance tax was a levy on assets received by non-lineal heirs. The elective share is a protection for surviving spouses. They operate under completely different statutes (Chapter 450 for inheritance tax, Chapter 633 for probate and the elective share). The repeal of one has nothing to do with the other.

A surviving spouse who elects against the will and receives one-third of the estate owes no Iowa inheritance tax on that share (they never did, as spouses were always Class A beneficiaries exempt from Iowa's inheritance tax). And under the current law, no one owes Iowa inheritance tax on any post-2025 death.

When to Seriously Consider Electing Against the Will

The surviving spouse should evaluate the elective share when:

• The will leaves the spouse less than one-third of the combined estate value (probate assets plus revocable trust assets)
• The estate includes highly appreciated real estate or farmland that could be sold by the surviving spouse after claiming the elective share
• There is family conflict and the surviving spouse faces pressure not to assert their rights
• The estate plan was created during a prior marriage or relationship and never updated
• The will directs most assets to adult children or third parties in a way that leaves the surviving spouse financially precarious

In these situations, consulting a probate attorney is essential before the four-month deadline expires. The attorney can value the estate, calculate what one-third represents, compare it against what the will provides, and advise whether electing is in the surviving spouse's financial interest.

The Executor's Obligations When a Spouse Elects

If a surviving spouse elects against the will, the executor must freeze distributions to other beneficiaries while the elective share is calculated and paid. The executor cannot simply comply with the will's distribution instructions and then address the elective share claim as an afterthought.

Executors in estates involving potential spousal election claims should retain legal counsel immediately. Mismanaging the sequencing — paying other beneficiaries before resolving the elective share — creates personal liability for the executor.

Getting Complete Guidance for Iowa Surviving Spouses

The spousal elective share, the family allowance, and the interaction with revocable trusts are areas where the stakes are high and the deadlines are short. If you're a surviving spouse in Iowa and you're uncertain whether the estate plan fairly provides for you, act quickly.

The Iowa Final Tax & Estate Tax Guide covers surviving spouse rights alongside the complete Iowa estate administration process — including the creditor claim period, tax filing obligations, and the Certificate of Acquittance required to close the estate.

See more Iowa guides →