Montana Elective Share: A Surviving Spouse's Right to Override the Will

When you discover that a spouse's will left the bulk of the estate to someone else — adult children from a prior relationship, a sibling, a charity — the immediate reaction is usually a combination of shock and helplessness. Most surviving spouses in this situation assume the will is final. Montana law says it is not.

Montana's elective share statute gives a surviving spouse the legal right to claim a portion of the decedent's estate regardless of what the will says. This is not a loophole — it is a foundational principle of the Uniform Probate Code, adopted in Montana to ensure that marriages of meaningful length result in meaningful financial protection for the surviving partner.

What the Elective Share Is

The elective share is a statutory remedy available to a surviving spouse when the decedent's will — or the overall estate plan — leaves the spouse with less than what Montana law considers an equitable share.

Under Montana's version of the Uniform Probate Code, the elective share is calculated as a percentage of the decedent's "augmented estate." The augmented estate is a broader concept than the probate estate: it includes not just assets that pass through the will, but also non-probate transfers — gifts made within two years of death, assets in revocable trusts, payable-on-death accounts, and property transferred with retained life estates. The purpose of including these assets is to prevent a spouse from using non-probate planning to effectively disinherit the surviving partner.

The percentage itself is tied to the length of the marriage. Longer marriages result in a higher elective share percentage, reflecting the recognition that a long-term spouse contributed to the accumulation of marital wealth even if title was never in both names. A spouse in a marriage of 15 years or more may be entitled to claim the maximum percentage of the augmented estate allowed under the statute.

When the Elective Share Makes Sense

Not every surviving spouse should exercise the elective share. The analysis depends on what the spouse would actually receive under the existing estate plan versus what they would receive by electing.

The elective share is most useful when:

• The decedent's will was written before the marriage and was never updated
• The decedent had significant assets in non-probate vehicles (trusts, TOD accounts) that effectively bypassed the spouse
• The will made substantial gifts to children from a prior relationship, leaving the surviving spouse with only a small portion of the actual marital wealth
• The surviving spouse and decedent had been married for a substantial period of time

The elective share is less useful — or may be counterproductive — when:

• The surviving spouse is already receiving substantial assets through beneficiary designations or joint tenancy
• The marriage was short
• The decedent's estate is largely composed of debt, making any "share" of limited practical value

How to Exercise the Elective Share in Montana

The elective share is not automatic. The surviving spouse must affirmatively elect to take it, and the election must be made within a specific time window. Under Montana law, the surviving spouse generally has nine months from the date of the decedent's death, or six months from the date of the will's admission to probate, whichever is later, to file the election with the district court.

Missing this deadline forfeits the right entirely. The will's terms become binding.

The election is filed with the clerk of the district court. Given that calculating the augmented estate requires identifying and valuing both probate and non-probate assets transferred by or from the decedent — including certain transfers made years before death — exercising the elective share in any contested estate is a legal proceeding where attorney involvement is strongly advisable.

The Elective Share Is Separate from Statutory Allowances

A surviving spouse in Montana has two separate layers of protection that often get confused:

Statutory allowances (the homestead allowance of $22,500, the family allowance of up to $27,000, and the exempt property allowance of $15,000) protect the spouse against creditors and operate before any distribution to beneficiaries.

The elective share protects the spouse against being disinherited by the will itself. It operates in addition to, not instead of, the statutory allowances.

A surviving spouse who has been left out of a will, or left very little, should evaluate both sets of protections separately. In many cases, the combination of the statutory allowances plus the elective share provides far more financial protection than either remedy alone.

What the Elective Share Does Not Cover

The elective share addresses the decedent's estate — assets the decedent owned. It does not give the surviving spouse a claim to:

• Assets the spouse already owns in their own name
• Gifts the decedent made to charitable organizations years before death (unless within the lookback period)
• Property owned outright by adult children or other beneficiaries who received it during the decedent's lifetime, subject to the transfer lookback rules

It also does not override valid prenuptial or postnuptial agreements. If the couple signed a valid agreement waiving elective share rights, that waiver is binding.

Getting the Process Right

If you are a surviving spouse who has been substantially disinherited, or suspects the overall estate plan was structured to minimize your inheritance, the elective share timeline is unforgiving. Nine months is not a long window when you are also navigating funeral arrangements, bills, and the general disorientation of grief.

The Montana Estate Settlement Guide covers the full estate settlement sequence for surviving spouses, including the allowances you can claim immediately and the decisions you need to make in the first few months. For the elective share itself — which involves calculating the augmented estate and filing formal court documents — retaining a Montana probate attorney to evaluate your specific situation is the right call before the deadline passes.

The single most important thing to know: if you do not act within the time limit, the will controls, and no subsequent action can undo that result.

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