Spousal Elective Share Requirements in Mississippi

At a glance

Requirements one by one

The share follows intestacy, with a no-descendant cap

Miss. Code § 91-5-25 lets either spouse renounce an unsatisfactory will within 90 days after probate. With children or represented descendants, § 91-1-7 gives the spouse a child's part: an equal share alongside the children, with a deceased child's descendants taking that child's branch. If no descendants survive, ordinary intestacy would give the spouse all, but § 91-5-25 caps a renouncing spouse at one-half of the real and personal estate.

Section 91-5-27 covers a will that gives the spouse nothing. The survivor gets the same statutory share automatically, without filing a renunciation.

The survivor's own property can shrink the result

Section 91-5-29 compares the spouse's separate property at the decedent's death with the value of the lawful share:

• Equal value bars renunciation.
• A smaller separate estate generally leaves only the deficiency to be made up.
• The statute illustrates the reduction directly: two-thirds separate wealth leaves one-third of the lawful portion; one-half leaves one-half; one-third leaves two-thirds.
• If the separate estate is less than one-fifth of the lawful portion, the spouse may take the full lawful portion.

The probate court may appoint three commissioners to value both estates and then order the amount needed from the decedent's real and personal property. The same rule applies to a husband renouncing a wife's will.

Filing is short and simple in the statute

Section 91-5-25 measures the 90-day period from probate of the will and directs filing in the office where the will was probated. It supplies the substance of the renunciation: reject the will provision and elect the legal estate share in its place.

Sections 91-5-23 through -29 state no extension, withdrawal, signature, acknowledgment, sworn verification, service, notice, or hearing requirement. They also state no representative-election route. A will provision is presumed to bar another estate share unless the will says otherwise, but timely renunciation under § 91-5-25 replaces that provision.

What trips people up

• One-half is not the universal fraction. It is the cap when no descendants survive. With descendants, the spouse takes a child's part under § 91-1-7.
• The spouse's separate estate is part of the calculation. Section 91-5-29 can reduce the share to a deficiency or eliminate renunciation altogether.
• No will provision means no renunciation is needed. Section 91-5-27 makes the share automatic in that circumstance.
• The statute does not prescribe a notary or service package. It requires filing a renunciation in the probate office within the statutory period.

Common questions

If there are three children, what is the starting fraction? The spouse takes a child's part under § 91-1-7, so the starting fraction is one-fourth before the § 91-5-29 separate-estate adjustment.

Does a wealthy surviving spouse always receive the statutory fraction? No. If the survivor's separate property equals the lawful portion, § 91-5-29 bars renunciation; lesser separate wealth can reduce the award.

When does the 90-day clock begin? Section 91-5-25 starts it when the will is probated, not on the date of death.

Does Mississippi count named nonprobate transfers in an augmented estate? Sections 91-1-7 and 91-5-23 through -29 create no augmented estate and list no joint, beneficiary-designated, trust, retirement, or insurance inclusions.

Statutes and sources

• Miss. Code § 91-1-7 — intestate spouse shares and payment of debts. Release-78 Official Code mirror (accessed 2026-08-02).
• Miss. Code §§ 91-5-23, 91-5-25, and 91-5-27 — will provision in bar, renunciation, 90-day deadline, descendant formula, one-half cap, and automatic no-provision share. Release-78 Official Code mirror (accessed 2026-08-02).
• Miss. Code § 91-5-29 — separate-estate valuation, reduction, full bar, and commissioner procedure. Release-78 Official Code mirror (accessed 2026-08-02).