A Surviving Spouse and Probate

By John Cromwell

When a person dies, generally a large portion of his property passes through the probate process. Through a series of steps that a local court oversees, the deceased person’s assets are gathered, valued and used to pay off his outstanding debts. Whatever assets remain are distributed to his beneficiaries. A surviving spouse is someone who is still alive when the person to whom she is legally married dies. Given a surviving spouse’s close emotional and financial ties to her deceased spouse, she will often play a prominent role in any probate proceeding.


A deceased person’s estate, or a collection of the deceased’s assets processed through the probate process, must be managed by someone who will ensure the probate process goes smoothly. If the deceased left a will, the will likely named an executor to fulfill this role. The deceased may name his spouse to act as an executor. If there is no will, the probate court will typically appoint a close family member to act as manager of the estate. Generally, the surviving spouse is the first choice, although she may decline this position and request the court appoint someone else. Declining the position will not affect her portion of assets from the will.

Community Property

Community property is a type of law followed in nine states, but it can define the rights of the surviving spouse if there is no will. Although community property rules vary, depending on the state, generally an estate is separated into two classes of assets. Community property is defined as assets obtained during the marriage which are not exempt as separate property. Separate property is defined as everything the deceased owned that he obtained with assets that were separate and not related to the marriage. Therefore, property owned before the marriage, gifts and bequests received by the deceased, and assets the spouses agreed were not community property are regarded as separate property. If there is no will and all the deceased’s children are also children of the surviving spouse, the surviving spouse will get all the community property. If the deceased had children from a prior marriage or relationship, half of the community property goes to the decedent’s children and the rest goes to the surviving spouse.

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Support During Proceeding

Since many of a surviving spouse’s assets may be shared with the deceased, it is important that the surviving spouse receives the necessary financial support to make it through until the end of the probate process. Generally, the surviving spouse may continue to use the family home and personal assets, such as cars and furniture, until probate is concluded. In addition, many states also permit the decedent’s family to receive a stipend to help support them during the probate process.

Elective Share

Regardless of whether there is a will or not, most states set a minimum number of assets that a surviving spouse can obtain. This is known as an elective share. Generally, the surviving spouse may claim a set portion of the deceased’s estate, regardless of what the decedent’s will says. The surviving spouse may be able to claim anywhere from one half to one third of the decedent’s estate, depending on whether the deceased had any children. The process for claiming the share and how much the surviving spouse may be able to claim depends on the probate code of the state.

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