Idaho: Spousal Elective Share Requirements

Requirements one by one

The election is limited to quasi-community property

Idaho Code § 15-2-201 defines the property at issue. It covers personal property
wherever located and qualifying real property acquired while the decedent was
domiciled elsewhere that would have been community property had the decedent
been domiciled in Idaho, plus qualifying exchange property. One-half of existing
quasi-community property belongs to the surviving spouse at death; the other
half is devisable and goes to the spouse if not devised.

Section 15-2-203 adds the elective layer. The right is limited to one-half of
the augmented quasi-community property estate. It is not a percentage of every
probate asset or of all separate property, and marriage length does not change
the fraction.

Transfers and spouse property expand the base

Under § 15-2-202, the spouse may require restoration of quasi-community property
transferred without adequate consideration or spousal consent when the decedent
retained possession, enjoyment, income, revocation, or principal powers; held it
with survivorship; or made a qualifying transfer within two years of death. The
two-year gift threshold is the greater of $10,000 or the federal annual gift-tax
exclusion for that year, measured per donee.

Section 15-2-203 also includes specified property received from the decedent and
owned by the spouse, plus qualifying spouse transfers derived from the decedent.
Joint ownership and certain appointed property are expressly included; federal
Social Security benefits are excluded. Spouse-owned and transferred property is
presumed decedent-derived unless the spouse proves another source.

The computed share is reduced by an allocable portion of general administration
expenses, homestead allowance, exempt property, and enforceable claims. Section
15-2-201 separately makes all quasi-community property subject to the decedent's
debts.

Filing and deadline

Idaho Code § 15-2-205 uses the later of nine months after death or six
months after the petition for probate was filed. The spouse files the petition
in court and mails or delivers it to the personal representative. A cause-based
extension must be requested before the time expires, and the spouse may withdraw
before final determination.

The spouse gives notice of the hearing's time and place to interested persons and
to distributees and recipients whose interests would be adversely affected. After
notice and hearing, the court determines the amount, orders payment or
contribution, and may fix liability for property outside the personal
representative's possession.

Right holder and waiver

The current § 15-2-204 makes the right personal during the spouse's life. For a
protected person, only the court handling the protective proceeding may exercise
it, after finding the election necessary for adequate support during probable
life expectancy. Beginning January 1, 2027, S 1240 adds a conservator route that
still requires notice and specific court authorization and uses a substituted-
decision standard.

§ 15-2-209 separately gives the spouse of a nondomiciliary a domicile-law
election against a valid will's disposition of noncommunity Idaho real property.

§ 15-2-208 permits whole or partial waiver before or after marriage through
a signed written contract, agreement, or waiver after fair disclosure. It
does not state a separate involuntariness or unconscionability test. Unless the
document says otherwise, a general waiver of all rights or complete separation-
related property settlement also waives homestead and exempt-property rights and
renounces benefits under intestacy or a will executed before the waiver.

Payment, will benefits, and additional rights

Under § 15-2-207, will and intestate benefits and other unrenounced augmented-
estate property passing to the spouse are credited first. The balance is
equitably apportioned among will beneficiaries and augmented-estate transferees.
Original transferees or appointees, and their donees while holding property or
proceeds, may return the property or pay its statutory value.

Election does not automatically reject will or intestate benefits. § 15-2-206
requires an express renunciation in the petition; a renounced benefit is
treated as if the spouse predeceased the testator.

Idaho also provides a $50,000 homestead allowance under § 15-2-402 and up to
$10,000 of exempt tangible personal property under § 15-2-403. These rights
are ordinarily additional, but a will provision clearly intended in lieu of them
must be renounced before the spouse can take the statutory rights. Section
15-2-405 adds another trap: the benefits are not automatic and must be applied
for under the statute's creditor-presentation timing framework.

What trips people up

• This is not a general half of the estate. The statutory election is tied to
  quasi-community property and its augmentation rules.
• The probate clock runs from filing. The second deadline is six months after
  the petition for probate was filed, not six months after appointment or notice.
• Transferred property can be restored. Section 15-2-202 can reach retained-
  benefit, survivorship, and qualifying two-year transfers of quasi-community
  property.
• The two allowances require an application. Their priority and additional-
  benefit language does not make them automatic.

Common questions

What if the couple always lived in Idaho? The Part 2 election addresses
property acquired while the decedent was domiciled elsewhere. Ordinary Idaho
community-property classification is a different analysis.

Does the spouse receive half before making an election? Section 15-2-201 says
one-half of existing quasi-community property belongs to the spouse at death.
The election matters to the augmented estate, including recoverable transfers
and spouse-derived property.

Can a protected spouse's conservator elect now? Current § 15-2-204 places
the act with the protective-proceeding court. S 1240 adds an express
court-authorized conservator route on January 1, 2027.

Must a will gift be renounced? Not merely to elect. It remains and is credited
toward the share unless the petition expressly renounces it; a separate in-lieu
will provision can affect the homestead and exempt-property allowances.

Statutes and sources

• Idaho Code §§ 15-2-201 to 15-2-203 — quasi-community property,
  recoverable transfers, spouse property, deductions, and one-half share.
  § 15-2-201,
  § 15-2-202,
  and § 15-2-203
  (accessed 2026-08-02).
• Idaho Code §§ 15-2-204 to 15-2-209 — right holder, petition, deadline,
  effect, contribution, waiver, and nondomiciliary realty. Official Part 2,
  starting at §
  15-2-204
  (accessed 2026-08-02).
• Idaho Code §§ 15-2-402, 15-2-403, and 15-2-405 — homestead and
  exempt-property amounts, additional-right treatment, application, and timing.
  § 15-2-402,
  § 15-2-403,
  and § 15-2-405
  (accessed 2026-08-02).
• ID S 1240 (2026), new Idaho Code § 15-5-414 and § 38 — future
  conservator authority and January 1, 2027 effective date. Official enrolled
  bill
  (accessed 2026-08-08).