Spousal Elective Share Requirements in Georgia

At a glance

Requirements one by one

Georgia's substitute system and eligible family

Georgia does not calculate a surviving spouse's protection as a percentage of an elective or augmented estate. Chapter 3 of Title 53 instead gives the surviving spouse and qualifying minor children of either a testate or intestate decedent property for their support and maintenance during the 12 months after death.

The statute's definition of a child is narrow: a minor who would inherit if the parent died intestate. A spouse's right is lost if the spouse remarries or dies before the petition is filed. A child's right is lost by marriage, death, or turning 18 before filing. The spouse may petition personally; a guardian or another person may act for the spouse or a minor child.

Amount, property base, and priority

There is no fraction, fixed floor, or marriage-length schedule. If someone objects to the proposed property or amount, the court sets aside enough to maintain the spouse's and each minor child's predeath standard of living. It must consider other support, the claimant's separate estate, income and earning capacity, estate solvency, and other equitable criteria. The petitioner bears the burden of proving the necessary amount.

The petition schedules money or property from the decedent's estate, whether the estate is solvent or insolvent. It must accurately describe any requested real estate with a legal description sufficient to pass title. Chapter 3 does not create a nonprobate or augmented-estate inclusion list.

Year's support is a necessary administration expense preferred before other debts or demands, subject to the exceptions Chapter 3 itself specifies. For real property, § 53-3-4 divests earlier tax years and lets the petition select one of the stated current-year tax alternatives. Once awarded, title leaves estate administration and vests in the spouse and eligible children; a spouse-only award becomes the spouse's unrestricted fee property.

Deadline, petition, notice, and hearing

The petition must be filed in the probate court handling the estate within 24 months after death. Chapter 3 states no extension or withdrawal route, and the remarriage/death/age events in § 53-3-2 can end eligibility before the 24 months expires.

Current GPCSF 10 supplies the sworn petition. It asks for the claimant and estate facts, a schedule of requested property or money, and the required interested-person information. Under the form's Rule 5.6(A) instruction, the moving party normally prepares and delivers the citation for lawful service, unless the court takes that responsibility.

The probate court issues the citation and publishes notice once a week for four weeks. When another personal representative exists, the court serves that representative at least 30 days before objections are due. If none exists, the petitioner files the sworn interested-person affidavit and the court mails the citation. The court also sends the petition to each affected county tax official within five days. No objection ordinarily leads to an order for the requested property; an objection produces a hearing under § 53-3-7.

Will election and agreements

Georgia does have one narrow statutory election. If the will expressly makes a provision for the spouse in lieu of year's support, § 53-3-3 requires the spouse to choose. That is not a percentage election against every will; absent an express in-lieu term, the year's-support right applies to a testate estate under § 53-3-1(c).

Chapter 3 states no general waiver form. If an antenuptial agreement is invoked, the separate formation statute requires a writing signed by both parties and attested by at least two witnesses, one of whom must be a notary public.

What trips people up

• The benefit period and filing period are different. Support measures the 12 months after death, but the petition may be filed within 24 months.
• Waiting can destroy eligibility early. Remarriage or death bars the spouse before filing even if the 24-month deadline has not arrived.
• The court, not the petitioner, performs the statutory service. The moving party may prepare and deliver the citation under the form instructions, but §§ 53-3-6 assigns publication, service, and mailing to the probate court.
• A will election exists only for an express in-lieu gift. A general will provision is not automatically the § 53-3-3 alternative.

Common questions

Is the award always one-third or one-half of the estate? No. The statute uses a needs-and-standard-of-living amount, not a percentage.

Can the petition request real estate? Yes. Section 53-3-5 requires a legal description sufficient to pass title, and the official form provides the real- property schedule and certificate workflow.

What if no one objects? After the required publication and notice, § 53-3-7 directs the probate court to enter an order setting apart the property requested in the petition if there is no surviving objection.

Statutes and sources

• O.C.G.A. §§ 53-3-1–53-3-3 — preference, eligibility, disqualifying events, and the express in-lieu will election. State-authorized public-domain Title 53 text (accessed 2026-08-02).
• O.C.G.A. § 53-3-4 — selected tax and tax-lien divestiture for awarded real property. State-authorized public-domain Title 53 text (accessed 2026-08-02).
• O.C.G.A. §§ 53-3-5–53-3-7 — petition, 24-month deadline, notice, service, objections, burden, and amount factors. State-authorized public-domain Title 53 text (accessed 2026-08-02).
• O.C.G.A. § 53-3-9 — vesting and spouse-only fee ownership. State-authorized public-domain Title 53 text (accessed 2026-08-02).
• O.C.G.A. § 19-3-62 — antenuptial-agreement writing, signatures, and two- witness rule. State-authorized public-domain Title 19 text (accessed 2026-08-02).
• GPCSF 10 — current petition, verification, schedules, citation instruction, and order forms. Georgia Probate Court Standard Form (accessed 2026-08-02).