Spousal Elective Share Requirements in Alaska

At a glance

Requirements one by one

The share is one-third with a shortfall supplement

Alaska uses a flat one-third of the augmented estate; marriage length does not change the fraction. The $50,000 supplemental amount is not automatically added. It fills the shortfall after the spouse's included property and the amounts the statute treats as satisfying or payable toward the share. Homestead allowance, exempt property, and family allowance remain additional.

Four property groups form the augmented estate

The estate combines net probate property, the decedent's specified nonprobate transfers to other people, nonprobate transfers to the spouse, and the spouse's own property and modeled nonprobate transfers. The transfer-to-others category reaches survivorship interests, POD and TOD property, insurance, retained- benefit and retained-power transfers, and certain transfers within two years before death. Its gift catchall includes value above $10,000 transferred to one person in either year.

Alaska adds two notable exclusions. A qualifying transfer to an irrevocable trust with an AS 34.40.110 transfer restriction is outside the base when the settlor remains a discretionary beneficiary and the transfer occurred more than 30 days before marriage or the spouse consented. Section 13.12.208(d) separately excludes community property under AS 34.77.

Claims, consideration, and consent affect value

The net probate estate is reduced by funeral and administration expenses, allowances, exempt property, and enforceable claims. Enforceable claims also reduce the other included property categories.

Full consideration and the spouse's written joinder or consent exclude a transfer from the decedent-to-others component. Present and future interests use commuted value, and overlapping provisions include property only once under the route producing the greatest value.

The later deadline can still remove nonprobate property

The petition is due by the later of nine months after death or six months after probate of the will. It must be filed in court and mailed or delivered to the personal representative, and the spouse must notify interested persons and adversely affected augmented-estate recipients of the hearing.

To preserve the decedent's nonprobate transfers to others after nine months, the spouse must petition for an extension and notify everyone interested in those transfers within nine months after death. Withdrawal remains available until final determination.

An incapacity election creates a custodial trust

The spouse must be alive when the petition is filed. A conservator, guardian, or power-of-attorney agent may act on the spouse's behalf.

When the spouse is incapacitated, the amount coming from the probate estate and nonprobate recipients goes into an Alaska Uniform Custodial Trust Act trust. A durable-power-of-attorney agent's election is presumed to be for an incapacitated spouse. Regaining capacity allows termination by signed writing; otherwise the trust ends at death and unspent property returns under the predeceased spouse's residuary clause or to that spouse's heirs.

Waiver requires a signed writing and disclosure safeguards

The spouse may waive the election and listed allowances wholly or partly before or after marriage through a signed written contract, agreement, or waiver. The statute states no witness or notarization requirement.

The spouse may defeat enforcement by proving involuntary execution, or by proving execution-time unconscionability together with the statute's lack-of- disclosure, no-written-disclosure-waiver, and inadequate-knowledge conditions. Unless contrary language appears, an “all rights” waiver also reaches allowances, intestacy benefits, and benefits under an earlier will.

Spouse benefits are credits before contribution

Probate and nonprobate property passing to the spouse is applied first, together with included spouse property up to two-thirds of the augmented estate. The statute then apportions any shortfall among the probate estate and most nonprobate recipients, followed by the remaining recent-transfer categories.

Original nonprobate recipients and donees still holding the property or proceeds contribute proportionally and may pay or surrender property. The election does not itself require renunciation of will or intestacy benefits; those amounts are credits toward satisfaction.

What trips people up

• The $50,000 amount is a shortfall supplement. It is reduced by the property and payments identified in § 13.12.202(b).
• The asset-protection-trust exclusion is timing-sensitive. The pre-marriage route requires the transfer more than 30 days before marriage unless the spouse consented.
• Alaska community property is excluded. Property under AS 34.77 does not enter the augmented estate.
• A late but otherwise timely petition can lose nonprobate reach. The six-month probate clock does not replace the nine-month extension requirement.

Common questions

Can a payor hold the property after receiving notice? Under § 13.12.214, a payor may deposit the funds or property with the probate court after registered or certified return-receipt notice or summons-style service.

What happens if federal law preempts contribution from a benefit? Section 13.12.210(b) makes a recipient who took without value return the benefit or bear personal liability through the statutory contribution scheme.

Does the spouse's own property count in full toward satisfaction? Section 13.12.209(a)(2) applies the included spouse-property component up to two-thirds of the augmented estate before contribution is charged to others.

Statutes and sources

• Alaska Stat. § 13.12.202 — one-third share, $50,000 supplement, additional allowances, and nonresident rule. Official current print range (accessed 2026-08-02).
• Alaska Stat. § 13.12.203, § 13.12.204, § 13.12.205, § 13.12.206, and § 13.12.207 — four estate components, probate deductions, and included transfers. Official current print range (accessed 2026-08-02).
• Alaska Stat. § 13.12.208 — consideration and consent exclusions, claims, commuted value, no-double-counting, and community-property exclusion. Official current print range (accessed 2026-08-02).
• Alaska Stat. § 13.12.209 and § 13.12.210 — satisfaction order and recipient contribution. Official current print range (accessed 2026-08-02).
• Alaska Stat. § 13.12.211 — filing, delivery, deadline, extension, nonprobate cutoff, notice, withdrawal, and determination. Official current print range (accessed 2026-08-02).
• Alaska Stat. § 13.12.212 and § 13.12.213 — living-spouse and representative routes, incapacity trust, and waiver. Official current print range (accessed 2026-08-02).
• Alaska Stat. § 13.12.214 — advance notice to payors and court-deposit route. Official current print range (accessed 2026-08-02).