Spousal Elective Share Requirements in Montana

At a glance

Requirements one by one

Marriage length scales the percentage

MCA § 72-2-232 gives the spouse 50% of the marital-property portion. MCA § 72-2-233 starts that portion at 3% before one year and reaches 100% after 15 years, so the effective percentage of the full augmented estate ranges from 1.5% to 50% before credits.

The $75,000 amount is a shortfall calculation, not an automatic addition. MCA § 72-2-232(2) subtracts the listed spouse-property and payment sources from that amount and charges any shortfall through the statutory payment order.

The augmented estate has a third-party-insurance exclusion

MCA § 72-2-233 combines the net probate estate, the decedent's nonprobate transfers to others, nonprobate transfers to the spouse, and the spouse's own property and hypothetical transfers.

MCA § 72-2-235 reaches powers of appointment, joint and POD/TOD property, retained-benefit and retained-power transfers, and specified transfers within two years before death. The general two-year gift rule includes value above the full federal annual gift-tax exclusion, measured per donee in either year. MCA § 72-2-236 and § 72-2-237 add nonprobate property passing to the spouse and spouse-owned or spouse-transferred property, excluding federal Social Security and reducing the spouse component by enforceable claims.

The important carveout is MCA § 72-2-238(1)(c): life or accident insurance payable to someone other than the spouse or estate is excluded from transfers to others. The same section excludes adequate-consideration and written-consent transfers, reduces included property by claims, commutes future interests under federal tax rules, and prevents double inclusion.

The deadline has a nine-month nonprobate cutoff

Under MCA § 72-2-241, the ordinary deadline is the later of nine months after death or six months after probate of the will. The spouse files a court petition, mails or delivers it to the personal representative, and gives hearing notice to estate interests and adversely affected recipients.

A petition after nine months ordinarily loses the decedent's nonprobate transfers to others. To preserve them, the spouse must petition for an extension and notify all interested nonprobate recipients within nine months; the court may extend for cause. The spouse may withdraw before final determination.

MCA § 72-2-244 adds a separate notice trap for payors. The notice must contain five statutory items and use registered or certified return-receipt mail or summons-style service. Liability begins only for actions at least two business days after receipt, and notice to a sales representative does not count.

Representatives and waiver safeguards

The spouse must be living when the petition is filed. MCA § 72-2-242 allows a conservator, guardian, or agent under a power of attorney to act. An election for an incapacitated spouse places the probate and third-party-transfer portion into a court-appointed support trust; an election by a durable-power agent is presumed to be for an incapacitated spouse.

MCA § 72-2-243 permits a signed written agreement before or after marriage, but its safeguards are more specific than a generic disclosure rule. Enforcement fails for involuntariness or duress, lack of access to independent legal representation, lack of a plain-language rights explanation when the spouse was unrepresented, or lack of adequate financial disclosure. Disclosure can be a good-faith description and estimate, a separate signed waiver, or adequate knowledge. General “all rights” language ordinarily reaches allowances and benefits under intestacy or an earlier will.

Credits, contribution, and additional benefits

MCA § 72-2-239 first credits will and intestate property, nonprobate property passing from the decedent, even included amounts the spouse disclaimed, and the marital-property portion of the spouse's own included property. Probate and primary transfer classes follow, then the remaining two-year transfers.

MCA § 72-2-240 limits contribution to original recipients and donees while holding property or proceeds; they may return proportional property or pay its value. Filing does not automatically forfeit will benefits because those benefits are credited first. MCA § 72-2-232(3) makes the homestead allowance, exempt property, and family allowance additional.

What trips people up

• The $75,000 amount is a formula. It fills a statutory shortfall after the listed spouse resources and payment sources are counted.
• Insurance does not follow the generic UPC pattern. Third-party life and accident insurance is expressly excluded from Montana's transfer-to-others component.
• The later deadline may be too late for nonprobate assets. The six-month probate clock does not preserve them beyond nine months after death by itself.
• Payor notice has a built-in delay. Even correct notice does not create liability for actions taken during the first two business days after receipt.

Common questions

Does a marriage under one year produce no percentage share? No. The marital-property portion is 3%, so the elective amount is 1.5% of the augmented estate before credits, and the $75,000 shortfall formula may also apply.

Is life insurance paid to another beneficiary counted? Section 72-2-238(1)(c) excludes life and accident insurance payable to someone other than the spouse or estate.

Can a guardian make the election? Yes. Section 72-2-242 lists a guardian, conservator, and agent under a power of attorney, but an incapacitated-spouse election triggers the statutory support trust.

Does a signed prenup automatically control? Not necessarily. Section 72-2-243 also tests voluntariness or duress, access to independent counsel, a plain-language explanation when unrepresented, and adequate disclosure.

Statutes and sources

• MCA §§ 72-2-232 to 72-2-233 — amount, $75,000 supplemental formula, domicile, additional benefits, four-part augmented estate, and marriage schedule. Official Part 2 index (accessed 2026-08-02); the frontmatter records each per-section URL.
• MCA §§ 72-2-234 to 72-2-238 — probate deductions, decedent and spouse nonprobate transfers, spouse property, insurance and other exclusions, claims, valuation, and overlap. Official Part 2 index (accessed 2026-08-02); the frontmatter records each per-section URL.
• MCA §§ 72-2-239 to 72-2-244 — credits, payment order, recipient liability, deadline, extension, representatives, incapacitated-spouse trust, agreements, and payor notice. Official Part 2 index (accessed 2026-08-02); the frontmatter records each per-section URL.