New Hampshire Surviving Spouse Rights

By Oleg Kachko · Updated September 6, 2026

✓ Verified September 2026

New Hampshire 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 New Hampshire 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 New Hampshire law, verified as of September 2026.

In This New Hampshire Guide:

At a Glance
Why the Will Cannot Disinherit a Spouse
The Elective Share
Allowances
Married After the Will
Waiver and Disqualification
What to Expect
Official Sources

New Hampshire Surviving Spouse Rights: At a Glance

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

Elective share	New Hampshire does not use the Uniform Probate Code elective share; instead RSA 560:10 lets a surviving spouse waive the will and homestead right and claim a statutory share of the probate estate remaining after debts and administration expenses. If the decedent left children or issue of deceased children, the share is one-third of the personalty and one-third of the real estate (RSA 560:10, I). If no issue but a parent or sibling survives, it is 10000 of personalty plus 10000 of real estate plus one-half of the remainder above those sums (RSA 560:10, II). If no issue, parent, or sibling survives, it is 10000 plus 2000 for each full year from the date of marriage to the decedent’s death, plus one-half of the remainder, in each of the personalty and the real estate (RSA 560:10, III). Real estate is assigned in the manner dower was formerly assigned.
Deadline to elect	The waiver or release must be in writing and filed in the probate office within 6 months after the appointment of the executor or administrator — not 6 or 9 months after the date of death (RSA 560:14). A late filing is barred “and not afterwards, unless by permission of the judge of probate for good cause shown,” so an extension is discretionary and not guaranteed. Where real estate is involved, the waiver must also be recorded in the registry of deeds for the county where the real estate sits (RSA 560:14).
Counts non-probate assets (augmented estate)	NO. New Hampshire has no augmented estate statute. RSA 560:10 measures the waiving spouse’s share against the probate estate remaining after payment of debts and expenses of administration, so non-probate transfers generally fall outside the calculation. Assets held in a decedent’s revocable trust, joint accounts with right of survivorship, payable-on-death accounts, and beneficiary-designated life insurance and retirement accounts are not automatically pulled back into the base. Because that gap is significant in planning disputes, you may want to check with a licensed New Hampshire attorney about any trust-based challenge.
Community property state	NO. New Hampshire is a separate property (common law) state, so there is no automatic one-half community interest for a surviving spouse. Property is owned as titled during the marriage, and at death the survivor’s protection comes from the RSA 560:10 waiver share, the homestead right, and the intestacy rules in RSA 561:1 rather than from a community property half.
Homestead allowance	The homestead right is a dollar-value protection in the primary residence, not a fixed cash allowance. Under RSA 480:1, as amended by 2025 HB 617 effective January 1, 2026, every person is entitled to 400000 of homestead value, with homesteads totaling not more than 550000 claimed where more than one owner claims in the same property; the prior figures were 120000 and 240000. A surviving spouse may assert the homestead right under RSA 480:3-a, and RSA 480:6-a provides that a devise does not defeat it. A spouse who waives under RSA 560:10 must waive the homestead right as well.
Exempt property	NONE — New Hampshire has no Uniform Probate Code style exempt property allowance for household goods, furniture, or a vehicle payable to the surviving spouse off the top of the estate. RSA chapter 560’s allowance provisions consist only of RSA 560:1 and RSA 560:2; sections 560:4 through 560:9 were repealed by 1971, 179:21. Personal property protection instead runs through the general exemption statute, RSA 511:2, which protects specified items from attachment during life rather than granting an estate allowance.
Family allowance	RSA 560:1 provides that the judge of probate may make the surviving spouse of a person deceased, testate or intestate, a reasonable allowance out of the personal estate for present support. The statute sets no dollar figure and no fixed duration — the amount is discretionary and the whole or such part as the judge deems reasonable is accounted as part of the spouse’s distributive share in the decree of distribution. Under RSA 560:2 the survivor may also remain in the house for 40 days after the death without being chargeable rent, with reasonable sustenance from the estate, which the judge takes into consideration in setting the allowance.
Court / filing	The New Hampshire Circuit Court, Probate Division, in the county where the estate is being administered — the same court that appointed the executor or administrator. Waivers affecting real estate must additionally be recorded in the registry of deeds for the county where the real estate is located (RSA 560:14). — Waiver by Surviving Spouse, New Hampshire Judicial Branch form NHJB-2498-P (an e-file only version is also published). The form identifies the county probate court, the surviving spouse and telephone number, and the date of marriage, and it must be signed before a Notary Public or Justice of the Peace. It records the election to waive the homestead right and the provisions of the will and to claim the RSA 560:10 statutory share.

Why the Will Cannot Disinherit a Spouse in New Hampshire

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. New Hampshire 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 New Hampshire surviving spouse rights fact that a grieving spouse most often learns too late.

The New Hampshire Elective Share

New Hampshire does not use the Uniform Probate Code elective share; instead RSA 560:10 lets a surviving spouse waive the will and homestead right and claim a statutory share of the probate estate remaining after debts and administration expenses. If the decedent left children or issue of deceased children, the share is one-third of the personalty and one-third of the real estate (RSA 560:10, I).

If no issue but a parent or sibling survives, it is 10000 of personalty plus 10000 of real estate plus one-half of the remainder above those sums (RSA 560:10, II).

If no issue, parent, or sibling survives, it is 10000 plus 2000 for each full year from the date of marriage to the decedent’s death, plus one-half of the remainder, in each of the personalty and the real estate (RSA 560:10, III). Real estate is assigned in the manner dower was formerly assigned.

The deadline: The waiver or release must be in writing and filed in the probate office within 6 months after the appointment of the executor or administrator — not 6 or 9 months after the date of death (RSA 560:14). A late filing is barred “and not afterwards, unless by permission of the judge of probate for good cause shown,” so an extension is discretionary and not guaranteed.

Where real estate is involved, the waiver must also be recorded in the registry of deeds for the county where the real estate sits (RSA 560:14).

What counts: NO. New Hampshire has no augmented estate statute. RSA 560:10 measures the waiving spouse’s share against the probate estate remaining after payment of debts and expenses of administration, so non-probate transfers generally fall outside the calculation. Assets held in a decedent’s revocable trust, joint accounts with right of survivorship, payable-on-death accounts, and beneficiary-designated life insurance and retirement accounts are not automatically pulled back into the base.

Because that gap is significant in planning disputes, you may want to check with a licensed New Hampshire attorney about any trust-based challenge.

Community property: NO. New Hampshire is a separate property (common law) state, so there is no automatic one-half community interest for a surviving spouse. Property is owned as titled during the marriage, and at death the survivor’s protection comes from the RSA 560:10 waiver share, the homestead right, and the intestacy rules in RSA 561:1 rather than from a community property half.

Allowances the Spouse Gets on Top of the Will

Homestead: The homestead right is a dollar-value protection in the primary residence, not a fixed cash allowance. Under RSA 480:1, as amended by 2025 HB 617 effective January 1, 2026, every person is entitled to 400000 of homestead value, with homesteads totaling not more than 550000 claimed where more than one owner claims in the same property; the prior figures were 120000 and 240000.

A surviving spouse may assert the homestead right under RSA 480:3-a, and RSA 480:6-a provides that a devise does not defeat it. A spouse who waives under RSA 560:10 must waive the homestead right as well.

Exempt property: NONE — New Hampshire has no Uniform Probate Code style exempt property allowance for household goods, furniture, or a vehicle payable to the surviving spouse off the top of the estate. RSA chapter 560’s allowance provisions consist only of RSA 560:1 and RSA 560:2; sections 560:4 through 560:9 were repealed by 1971, 179:21.

Personal property protection instead runs through the general exemption statute, RSA 511:2, which protects specified items from attachment during life rather than granting an estate allowance.

Family allowance: RSA 560:1 provides that the judge of probate may make the surviving spouse of a person deceased, testate or intestate, a reasonable allowance out of the personal estate for present support.

The statute sets no dollar figure and no fixed duration — the amount is discretionary and the whole or such part as the judge deems reasonable is accounted as part of the spouse’s distributive share in the decree of distribution.

Under RSA 560:2 the survivor may also remain in the house for 40 days after the death without being chargeable rent, with reasonable sustenance from the estate, which the judge takes into consideration in setting the allowance.

Married After the Will Was Signed

New Hampshire has no pretermitted spouse statute. RSA 551:10 protects only omitted children and issue, giving them the share they would take if the decedent had died intestate, and it does not extend to a spouse.

Marriage after a will is executed does not revoke the will; RSA 551:13 addresses revocation by a later writing, by physical act, and by divorce or annulment as to the former spouse, but not by marriage. A spouse married after the will was signed and left out of it must therefore use the RSA 560:10 waiver and the RSA 560:14 6-month filing to claim a share.

Waiver and Disqualification in New Hampshire

Spouses may contract away these rights. RSA 460:2-a authorizes two people in contemplation of marriage to enter into a written interspousal contract, and directs New Hampshire courts to give contracts made in other jurisdictions the same effect those courts would; no term may abrogate the statutory or common law rights of minor children of the contemplated marriage.

The statute requires a writing signed by both parties; notarial acknowledgment is customary but not made a statutory condition. New Hampshire courts apply ordinary contract principles plus fairness review, so full financial disclosure and the opportunity for independent counsel matter to enforceability — check with a licensed New Hampshire attorney before relying on one.

What forfeits the rights: RSA 560:19 provides that if, at the time of death, the decedent was justifiably living apart from the surviving spouse because that survivor was or had been guilty of conduct constituting cause for divorce, the guilty survivor takes no interest or portion in the decedent’s real or personal estate except what the decedent’s will gives them.

The statutory divorce grounds are set out in RSA 458:7 and include adultery, extreme cruelty, and abandonment for 2 years. A merely pending divorce that was not final at death does not by itself end the marriage or the spousal claim; RSA 551:13 revokes will provisions for a former spouse only upon a completed divorce or annulment.

If there is no will: With no will, RSA 561:1 gives the surviving spouse the entire intestate estate if the decedent left no issue and no parent, and otherwise a first dollar amount plus a fraction of the balance — 250000 plus three-fourths where a parent but no issue survives, 250000 plus one-half where all issue are also issue of the survivor,

150000 plus one-half where all issue are shared but the survivor has other issue, and 100000 plus one-half where any issue is not the survivor’s — which is covered in full on the separate New Hampshire intestate succession page.

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

Other New Hampshire rules: Three features are distinctive. First, the RSA 560:10, III share is a length-of-marriage sliding scale — 10000 plus 2000 for each full year from marriage to death, plus half the remainder — applied only when no issue, parent, or sibling survives.

Second, RSA 560:3 abolished dower and curtesy outright, yet RSA 560:10 still directs that the waiving spouse’s real estate be assigned “in the same manner as dower has heretofore been assigned,” a surviving procedural remnant.

Third, the RSA 480:1 homestead value rose from 120000 to 400000 per person, capped at 550000 across owners, effective January 1, 2026 under 2025 HB 617 — a recent change that materially enlarges the surviving spouse’s protected interest in the home.

Mistakes That Cost a Surviving Spouse in New Hampshire

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 New Hampshire 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 New Hampshire Surviving Spouse Rights

Claiming New Hampshire 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.

You don’t have to do this alone

If you are settling a loved one’s estate in New Hampshire, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.

Key Takeaways: New Hampshire Surviving Spouse Rights

The will cannot disinherit you: New Hampshire surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
You must elect: New Hampshire surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
The deadline is short: the election that secures New Hampshire surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
Allowances come first: the homestead, exempt-property, and family allowances under New Hampshire surviving spouse rights are paid before creditors and heirs.
Trusts may count: in augmented-estate states, New Hampshire surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
Community property is different: where it applies, half is already the survivor’s, and New Hampshire surviving spouse rights are about the other half.
A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under New Hampshire surviving spouse rights.
Prenups can waive: New Hampshire surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
Separation can forfeit: a pending divorce or abandonment can end New Hampshire surviving spouse rights in some states before the death.
Sign nothing early: a release or disclaimer offered by another heir can waive New Hampshire surviving spouse rights the spouse never knew about.
Compare before you elect: New Hampshire surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
The intestate share is separate: when there is no will, New Hampshire surviving spouse rights are set by the intestacy rules on the companion guide.

Quick Answers: New Hampshire Surviving Spouse Rights

What are New Hampshire 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. New Hampshire Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

How long does a spouse have to claim New Hampshire 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 New Hampshire surviving spouse rights are lost.

Do New Hampshire 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, New Hampshire surviving spouse rights reach only the probate estate.

Official New Hampshire Sources & Resources

New Hampshire Probate Court: https://www.courts.nh.gov/our-courts/circuit-court/probate-division/forms
New Hampshire Elective Share Statute: https://gc.nh.gov/rsa/html/LVI/560/560-10.htm
Internal Revenue Service — Estate Tax: irs.gov
Cornell Legal Information Institute: law.cornell.edu/wex

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

More New Hampshire Estate 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.

Estate planning? Make sure your life insurance is in order — see Life Insure Guide. Worried about Medicaid estate recovery? See Medicare Cover Guide. Divorced recently? Update your will and beneficiaries — see Divorce Help Guide.

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