Spousal Elective Share Requirements in New Hampshire

At a glance

Requirements one by one

The share depends first on surviving relatives

RSA 560:10 uses three separate formulas:

• If a child or a deceased child's issue survives, the spouse receives one-third of the personalty and one-third of the real estate.
• If no descendant survives but a parent or sibling does, the spouse receives $10,000 plus half of the remainder over $10,000, calculated separately for personalty and real estate.
• If none of those relatives survives, the threshold in each property category is $10,000 plus $2,000 for every full year of marriage, followed by half of the remainder above that threshold.

For the second and third tiers, the statute says that when the inventory value of the real estate does not exceed $10,000, the spouse takes the whole remainder without an assignment unless an interested party petitions for one. Marriage length changes only the third tier.

The base is the remaining estate, not an augmented estate

Section 560:10 calculates the share from real and personal estate remaining after debts and administration expenses. The complete current Chapter 560 has no provision adding revocable trusts, survivorship accounts, beneficiary designations, recent gifts, or the spouse's own property to an augmented base.

RSA § 563-D:13(V) makes one modern exclusion explicit: property conveyed by a transfer-on-death deed is not part of the probate estate for the RSA 560:10 elective share.

Eligibility can be lost through marital misconduct

RSA § 560:18 bars a husband from the statutory estate interest when, for the three years before his wife's death, he willingly abandoned and absented himself, willfully neglected support, or was unheard from because of his own neglect. He may still receive what the will gives him.

RSA § 560:19 applies to either spouse. A survivor guilty of conduct constituting cause for divorce receives no statutory interest when that conduct justified the decedent's living apart at death, but may still take a will gift. Chapter 560 does not identify an agent, guardian, or conservator who may make the post-death election for the spouse.

Filing runs from appointment, not death

Under RSA § 560:14, the waiver and release must be written and filed in the probate office within six months after an executor or administrator is appointed. A probate judge may permit a later filing for good cause. The chapter does not state a withdrawal cutoff.

When real estate is involved, the same waiver and release must also be recorded in the registry of deeds for the county where the real estate lies. The New Hampshire Judicial Branch publishes an e-file-only “Waiver by Surviving Spouse” notification form for the RSA 560:10 election.

Premarital settlement can eliminate the right

RSA § 460:2-a authorizes a written interspousal contract made in contemplation of marriage. That contract may embody the premarital settlement that RSA §§ 560:15 to 560:16 enforce when it was stipulated to be in lieu of the spouse's homestead right, distributive share, or both. Those sections do not describe a postnuptial agreement route.

The post-death election is a different waiver: the spouse gives up the homestead right and all favorable will provisions in order to claim RSA 560:10.

Election replaces will and homestead benefits

The spouse takes nothing under the will after electing. The balance not passing to the spouse under the applicable formula follows the will, and Chapter 560 states no contribution order against nonprobate recipients.

RSA § 560:1 separately allows the probate judge to grant a widow a reasonable support allowance from personal property. Any amount the judge directs is accounted as part of her distributive share, including when she makes the statutory election; it is not an automatic amount added on top.

What trips people up

• The two property categories are calculated separately. The $10,000 and marriage-year thresholds apply in both personalty and realty, not once to a combined total.
• Only one tier uses marriage length. The $2,000-per-full-year addition applies only when no descendant, parent, or sibling survives.
• The six-month clock starts with appointment. It does not run from death, admission of the will, or notice to the spouse.
• Real estate adds a second filing location. Filing in probate does not replace the county deed-registry recording required by RSA 560:14.

Common questions

Can the spouse keep a will gift and claim the statutory share? No. RSA 560:10 requires waiver of favorable will provisions and says the electing spouse takes nothing under the will.

Does a revocable trust enter the calculation? Chapter 560 has no augmented-estate provision that adds it. The survey does not assume a trust is part of the remaining estate merely because the spouse makes an election.

What if the six-month deadline has passed? RSA 560:14 permits the probate judge to allow a late filing for good cause; it does not promise an extension.

Can an antenuptial agreement waive the share? A written antenuptial contract paired with a premarital settlement expressly in lieu of the listed rights is the statutory route in RSA 460:2-a and RSA 560:15 to 560:16.

Statutes and sources

• RSA 560:10 — will-and-homestead waiver, kin-based share formulas, deductions, realty inventory threshold, residue, and loss of will benefits. Official merged Chapter 560 (accessed 2026-08-02).
• RSA 560:14 — written probate filing, six-month appointment-based deadline, good-cause late permission, and deed-registry recording. Official merged Chapter 560 (accessed 2026-08-02).
• RSA 560:1, 560:15 to 560:16, and 560:18 to 560:19 — widow allowance, premarital settlements, abandonment, and divorce-cause disqualification. Official merged Chapter 560 (accessed 2026-08-02).
• RSA 563-D:13(V) — transfer-on-death deed exclusion. Official current section (accessed 2026-08-02).
• RSA 460:2-a — written antenuptial contracts. Official current section (accessed 2026-08-02).
• New Hampshire Judicial Branch waiver page — official e-file-only form description. Official court page (accessed 2026-08-02).