Montana Surviving Spouse Rights — Elective Share, Allowances, and the Deadline to Claim Them (2026)

✓ Verified September 2026

Montana Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.

This guide gives the Montana answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Montana law, verified as of September 2026.

Montana Surviving Spouse Rights: At a Glance

Here are the Montana facts that decide most Montana surviving spouse rights claims:

Why the Will Cannot Disinherit a Spouse in Montana

The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.

In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Montana uses one of those two systems, and the table above says which.

The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Montana surviving spouse rights fact that a grieving spouse most often learns too late.

The Montana Elective Share

A surviving spouse of a decedent domiciled in Montana may elect to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate (MCA 72-2-232(1)).

The marital-property portion is not the whole augmented estate — under MCA 72-2-233(2) the four components of the augmented estate are multiplied by a graduated percentage that rises with the length of the marriage, from 3 percent for the shortest marriages to 100 percent at 15 years or more. Because 100 percent is only reached at 15 years, the maximum effective claim is 50 percent of the augmented estate.

Montana also guarantees a supplemental elective-share amount of 75000 if the spouse’s own qualifying property and the elective share total less than that figure (MCA 72-2-232(2)).

The deadline: The election must be made by filing a petition for the elective share with the court and mailing or delivering it to the personal representative, if any, within 9 months after the date of the decedent’s death, or within 6 months after the probate of the decedent’s will, whichever limitation later expires (MCA 72-2-241(1)).

Within the 9 months after death, the surviving spouse may petition the court for an extension of time to elect; if notice is given to all persons interested in the decedent’s nonprobate transfers to others, the court may extend the time for cause shown (MCA 72-2-241(2)). Deadlines are strict, so you may want to confirm dates with the district court or a licensed Montana attorney.

What counts: YES. Montana counts far more than the probate estate.

Under MCA 72-2-233 the augmented estate is built from four components: the decedent’s net probate estate (72-2-234); the decedent’s nonprobate transfers to others, which reach revocable trusts, joint tenancy and POD/TOD accounts, life insurance, retirement benefits and certain transfers made within 2 years of death (72-2-235); the decedent’s nonprobate transfers to the surviving spouse (72-2-236); and the surviving spouse’s own property and nonprobate transfers to others (72-2-237).

Assets moved into a living trust or retitled jointly therefore generally remain inside the elective-share base rather than escaping it.

Community property: NO. Montana is a common-law (equitable distribution) state, not a community property state, so there is no automatic one-half ownership interest that vests in the surviving spouse at death. Protection comes instead from the elective share against the augmented estate under MCA 72-2-232 and the Part 4 allowances.

Montana does separately recognize property that retains its community character when a couple acquired it while domiciled in a community property state and then moved to Montana; that preserved character is addressed under Title 72, chapter 2, part 9.

Allowances the Spouse Gets on Top of the Will

Homestead: A decedent’s surviving spouse is entitled to a homestead allowance of 22500 (MCA 72-2-412). If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance equal to 22500 divided by the number of those children. The homestead allowance is exempt from and has priority over all claims against the estate.

It is a cash allowance rather than a right to occupy the residence itself, and it is in addition to — not charged against — any share passing to the spouse by will, intestate succession, or elective share.

Exempt property: In addition to the homestead allowance, the surviving spouse is entitled from the estate to household furniture, automobiles, furnishings, appliances, and personal effects with a value not exceeding 15000 in excess of any security interests in those items (MCA 72-2-413). If there is no surviving spouse, the decedent’s children are entitled jointly to the same value.

If the estate lacks enough of that kind of property, the spouse may take other estate assets to make up the deficiency. These rights have priority over all claims against the estate, except that the right to make up a deficiency abates as needed to pay the homestead allowance and family allowance first.

Family allowance: The surviving spouse, along with minor children the decedent was obligated to support and children in fact being supported by the decedent, is entitled to a reasonable allowance in money out of the estate for maintenance during the period of administration (MCA 72-2-414). If the estate is inadequate to discharge allowed claims, the allowance may not continue for longer than 1 year.

The personal representative may set the allowance without a court order in a lump sum not exceeding 27000, or in periodic installments not exceeding 2250 per month for 1 year (MCA 72-2-415); larger amounts require court approval. The family allowance is exempt from and has priority over all claims except the homestead allowance.

Married After the Will Was Signed

If a testator’s surviving spouse married the testator after the will was executed,

the omitted spouse is entitled to receive no less than the value of the share he or she would have received had the testator died intestate — but that intestate share is computed only as to the portion of the estate that is neither devised to a child of the testator born before the marriage who is not a child of the surviving spouse, nor devised to that child’s descendant,

nor passing to such a child or descendant under MCA 72-2-613 or 72-2-614 (MCA 72-2-331(1)).

The spouse does not take this share if it appears from the will or other evidence that the will was made in contemplation of the marriage, if the will expresses the intention that it is effective notwithstanding any subsequent marriage, or if the testator provided for the spouse by transfer outside the will with the intent that it be in lieu of a testamentary provision.

Waiver and Disqualification in Montana

The right of election, and the rights to homestead allowance, exempt property and family allowance, may be waived wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse (MCA 72-2-244).

A waiver is unenforceable if the surviving spouse proves that it was not executed voluntarily, or that it was unconscionable when executed and, before signing, the spouse was not provided a fair and reasonable disclosure of the other’s property and financial obligations, did not voluntarily and expressly waive in writing any right to such disclosure,

and did not have or reasonably could not have had adequate knowledge of that property and those obligations.

Independent counsel is not expressly required by the statute. Unconscionability is decided by the court as a matter of law. See also MCA 72-2-243 on the effect of premarital and marital agreements.

What forfeits the rights: A person who is divorced from the decedent, or whose marriage to the decedent was annulled, is not a surviving spouse and takes nothing, unless a subsequent remarriage means they were married to the decedent at death (MCA 72-2-812).

A decree of separation that does not terminate the status of husband and wife does not by itself end surviving-spouse status, though a property settlement or waiver within a separation may cut off these rights under MCA 72-2-244.

Montana’s statute also excludes a person who obtained or consented to a divorce or annulment not recognized as valid in Montana, and a person who participated in a purported marriage ceremony with a third party after the separation. Mere abandonment or long separation is not itself a statutory ground of forfeiture.

If there is no will: With no will, the surviving spouse’s intestate share under MCA 72-2-112 ranges from the entire estate — when no descendant or parent survives, or when all surviving descendants are also descendants of the surviving spouse and the spouse has no other descendants — down to the first 300000, 225000, or 150000 plus a fraction of the balance,

depending on whether a parent survives or stepchildren are in the picture.

The Montana dying-without-a-will guide linked below covers that in full.

Other Montana rules: Montana uses the 2008-revised Uniform Probate Code approach, so the sliding scale operates on the marital-property portion rather than on the raw share: 50 percent of a base that itself scales with marriage length, reaching a full 100 percent inclusion only at 15 years (MCA 72-2-232, 72-2-233). Sources still citing the repealed and renumbered MCA 72-2-221 reflect the older framework.

Montana has abolished dower and curtesy (MCA 72-2-121), and there is no statutory life estate in the marital home; the homestead allowance is a fixed 22500 cash right instead. The elective share is satisfied first from the decedent’s probate estate and the spouse’s own qualifying property, with any remainder apportioned among recipients of nonprobate transfers (MCA 72-2-239). Amounts in Part 4 are fixed by statute rather than indexed annually.

Many estates can claim the allowances without litigation, but you may want to check with the district court or a licensed Montana attorney.

Mistakes That Cost a Surviving Spouse in Montana

The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.

A spouse who was left “the house” may be entitled to considerably more under the Montana surviving spouse rights rules — and may also be entitled to allowances the will never mentions.

The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.

If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.

What to Expect When You Claim Montana Surviving Spouse Rights

Claiming Montana surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.

Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.

Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.

Quick Answers: Montana Surviving Spouse Rights

What are Montana Surviving Spouse Rights if the will leaves the spouse nothing?

A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Montana Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

How long does a spouse have to claim Montana Surviving Spouse Rights?

A fixed period after death or after the will is admitted, set by statute. Missing it forfeits the statutory share, which is the most common way Montana surviving spouse rights are lost.

Do Montana Surviving Spouse Rights include assets in a trust?

In augmented-estate states, yes — trusts, joint accounts, and large gifts are added back before the share is calculated. In others, Montana surviving spouse rights reach only the probate estate.

Official Montana Sources & Resources

• Montana Probate Court: https://courts.mt.gov/selfhelp/
• Montana Elective Share Statute: https://mca.legmt.gov/bills/mca/title_0720/chapter_0020/part_0020/section_0320/0720-0020-0020-0320.html
• Internal Revenue Service — Estate Tax: irs.gov
• Cornell Legal Information Institute: law.cornell.edu/wex

This Montana guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.

More Montana Estate Guides

• Contest a Will in Montana
• Montana Medicaid Estate Recovery
• Dying Without a Will in Montana
• Montana Probate Process
• When a Spouse Died With Debt
• All State Guides

Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.