Disinheriting a Spouse in a Utah Will: The Elective Share Rule

Understanding the Utah Elective Share

Estate planning gets extremely complicated when marriages break down or when spouses maintain entirely separate finances. Many people mistakenly believe that if they draft a valid will leaving all their money to their children from a first marriage, their current spouse will receive nothing. In Utah, this is legally impossible without the spouse's explicit consent. The state protects surviving spouses from being left destitute through a legal mechanism known as the elective share. Codified in Utah Code § 75-2-202, this rule ensures that a widow or widower can 'elect' to take a statutory percentage of the deceased spouse's assets, entirely overriding the terms of the written will.

How the Augmented Estate is Calculated

When a surviving spouse claims their elective share, they are generally entitled to one-third of the 'augmented estate.' It is critical to understand that the augmented estate is much larger than just the probate estate. If you live in Provo and try to hide money by keeping it out of your will, the court will still count it.

What is Included in the Augmented Estate?

To prevent spouses from giving all their property away right before death, Utah law calculates the elective share based on almost everything the deceased owned. This includes the probate estate (property passed through the will), but also non-probate transfers. Life insurance policies paying out to a different beneficiary, joint bank accounts held with a sibling, real estate placed in a revocable living trust, and significant gifts made shortly before death are all pulled back into the calculation to determine the total value of the augmented estate. This comprehensive approach was analyzed in significant state cases such as In re Estate of Bartell, 776 P.2d 885 (UT Supreme Court 1989), which dealt with the complexities of spousal rights in estate litigation.

The Timeline to File

A surviving spouse does not get the elective share automatically. They must actively claim it by filing a formal petition at the relevant local court, such as the Third District Court, West Jordan or the Eighth District Court, Vernal. This petition generally must be filed within nine months after the date of the deceased spouse's death, or within six months after the probate of the will, whichever time limitation expires later. Missing this deadline usually means waiving the right to the elective share.

What Happens During a Legal Separation?

Couples in Utah who are estranged often wonder how a separation affects inheritance. Unless you are formally and legally divorced with a finalized decree signed by a judge, you are still considered legally married. A physical separation-even if you have lived in different cities for ten years-does not terminate your spouse's right to claim the elective share. If you are going through a prolonged divorce process, you should urgently consult an attorney from our US Lawyer Directory to protect your assets while the divorce is pending.

How Prenuptial Agreements Override Will Provisions

There is only one surefire way to legally disinherit a spouse in Utah: they must voluntarily agree to it in writing. Under Utah Code § 75-2-213, a spouse can waive their right to the elective share, homestead allowance, and exempt property through a valid prenuptial agreement (signed before marriage) or a postnuptial agreement (signed after marriage). For this waiver to be legally enforceable, there must be a fair and reasonable disclosure of both parties' financial assets before signing, and neither party can be coerced. If a valid prenuptial agreement exists, the court will honor it, and the surviving spouse cannot successfully claim the statutory one-third share.

Frequently Asked Questions (FAQ)