Spousal Elective Share Requirements in Alabama

At a glance

Requirements one by one

The lesser-of formula and the spouse's separate estate

Alabama's § 43-8-70 formula compares two amounts and awards the smaller:

1. the entire decedent's estate minus the surviving spouse's separate estate; or
2. one-third of the decedent's estate.

Suppose the decedent's estate is $900,000. One-third is $300,000. If the spouse's separate estate is $100,000, the competing subtraction amount is $800,000, so the preliminary share is $300,000. If the separate estate is $750,000, the subtraction amount is $150,000, so the preliminary share is $150,000.

The separate estate is broad. It includes property the spouse owns outright or in fee simple immediately after death, interests acquired only by surviving the decedent, trust income and beneficial interests, life-insurance proceeds, and interests under the listed broad-based employer plans. Section 43-8-1(8) defines the decedent's estate as property subject to Chapter 8 as constituted and as it exists during administration; § 43-8-70 does not add a separate list of the decedent's nonprobate transfers to that base.

Who may elect and who is disqualified

The decedent must have been domiciled in Alabama. A nonresident decedent's spouse follows the law of the decedent's domicile for Alabama property.

Section 43-8-71 makes the election exercisable only by the surviving spouse during life. If a guardian, custodian, curator, or conservator has been appointed, the fiduciary petitions and the court must find the election necessary to provide adequate support during the spouse's probable life expectancy.

Section 43-8-252 excludes specified divorced or annulled spouses and a person covered by an order terminating all marital property rights. A separation decree that does not end the marriage is not itself a divorce. As amended effective October 1, 2026, § 43-8-253 bars a spouse who feloniously and intentionally killed the decedent or who was convicted of first- or second-degree elder abuse and neglect or financial exploitation of the decedent. A qualifying final conviction is conclusive. The court must order the judgment recorded in each county where the decedent or victim owned property. The earlier statute addressed felonious and intentional killing alone. 2026 Ala. Acts No. 2026-287, §§ 1–2 (SB 41), set October 1, 2026 as the amendment’s effective date.

Valuation, credits, and payment

Sections 43-8-70 through -75 do not state a separate funeral-expense, administration-expense, claim deduction, or general estate valuation date. The express calculation adjustment is the spouse's separate-estate subtraction.

Section 43-8-75 then applies values included in the estate that pass to the spouse—or would have passed but were renounced—first toward the share. A life estate or trust interest is presumptively worth one-half of the underlying property unless proof establishes another value. If coupled with a general power of appointment, the presumptive value is two-thirds.

The remaining balance is equitably apportioned among estate recipients in proportion to their interests. Under § 43-8-73(d), the court may fix liability against a person interested in or holding estate property even if the personal representative never possessed it or already distributed it. The order may be enforced through a contribution or payment suit in Alabama or another jurisdiction.

Deadline, extension, filing, and hearing

The filing deadline is the later of six months after death or six months after probate of the will. The court may extend the deadline for cause, but the spouse must show cause before the original election period expires.

The spouse files a petition with the probate court and mails or delivers it to the personal representative, if one exists. The spouse also gives hearing notice to interested persons whose estate interests would be adversely affected. After notice and hearing, the court determines the share and orders its satisfaction. The spouse may withdraw before the final determination.

Waiver and additional allowances

Section 43-8-72 permits a whole or partial waiver before or after marriage. It must be a signed written contract, agreement, or waiver made after fair disclosure. Unless the document says otherwise, an all-rights waiver or complete property settlement generally also waives the elective share, homestead, exempt-property and family allowances, intestate benefits, and benefits under a will signed before the waiver or settlement.

Absent a waiver, § 43-8-74 preserves the homestead, exempt-property, and family allowances whether or not the spouse elects. The current companion sections set the homestead allowance at $15,000, exempt property at up to $7,500, and a reasonable family allowance during administration, capped at one year when the estate cannot discharge allowed claims. Sections 43-8-110 through -112 describe these benefits as additional to the elective share or not chargeable against it.

What trips people up

• The spouse's separate estate can reduce the percentage. Alabama does not simply award one-third in every case; the lesser-of comparison controls.
• Nonprobate spouse benefits matter in two places. Survivorship, insurance, trust, and employer-plan interests can enter the separate-estate subtraction, while estate values passing to the spouse are also applied first under § 43-8-75.
• An extension request must be timely. Cause must be shown before the later- of election period expires.

Common questions

Does marriage length change the percentage? No. Section 43-8-70 contains no marriage-duration schedule.

Can an attorney-in-fact elect under a power of attorney? Section 43-8-71 does not provide a general agent route. It permits only the spouse personally, with the stated court-ordered process when a guardian, custodian, curator, or conservator has been appointed.

Can the spouse keep a will gift? Sections 43-8-70 through -75 do not make the election an automatic renunciation. Section 43-8-75 instead applies estate values passing to the spouse first toward satisfying the share.

Must the petition be notarized? The elective-share sections require a petition, filing, delivery or mailing, notice, and a hearing, but state no notarization or sworn-verification requirement.

Statutes and sources

• Ala. Code §§ 43-8-1(3), (8) and 43-8-70 — probate-court and estate definitions, lesser-of share, spouse separate estate, and domicile. Official Alabama Code (accessed 2026-10-02).
• Ala. Code §§ 43-8-71 to -72 — personal exercise, fiduciary petition, and waiver. Official Alabama Code (accessed 2026-10-02).
• Ala. Code § 43-8-73 — deadline, extension, petition delivery, notice, hearing, withdrawal, liability, and enforcement. Official Alabama Code (accessed 2026-10-02).
• Ala. Code §§ 43-8-74 to -75 — additional allowances, spouse credits, valuation presumptions, and apportionment. Official Alabama Code (accessed 2026-10-02).
• Ala. Code §§ 43-8-252 to -253 — divorce and property-right exclusions and the current homicide, elder-abuse, and financial-exploitation rules. Official Alabama Code (accessed 2026-10-02).
• Ala. Code §§ 43-8-110 to -112 — homestead, exempt-property, and family allowances. Official Alabama Code (accessed 2026-10-02).
• 2026 Ala. Acts No. 2026-287, §§ 1–2 (SB 41) — added the elder-abuse and financial-exploitation rule effective October 1, 2026. Official enrolled act (accessed 2026-10-02).