Rhode Island: Spousal Elective Share Requirements
The short answer
Rhode Island combines a life estate in the decedent's individually titled real estate, a discretionary real-estate allowance of up to $150,000, and the spouse's intestate share of probate personal property. The personal-property share is one-half when descendants survive, or $50,000 plus one-half of the remainder when none survive. When the will gives the spouse property, the spouse must renounce that gift and petition within six months after first publication of the fiduciary's qualification, subject to a timely extension that cannot run beyond nine months after death.
Ask Ezel about your situation
This is the general rule in Rhode Island. Ask about your specific facts and see which parts of current Rhode Island law apply, with citations to the statutes.
| Governing law and system | Chapter 33-28; elective share combines real-estate life estate/allowance with intestate share of probate personalty, not an augmented estate (§ 33-28-1) |
|---|---|
| Eligible spouse and who may elect | Living surviving spouse of a Rhode Island-domiciled decedent; spouse, conservator, guardian, or authorized POA agent may elect. Decedent domiciled elsewhere: domicile law governs (§§ 33-28-1(c), -2) |
| Share amount and marriage length | Realty: life estate + discretionary fee allowance up to $150,000. Personalty: 1/2 with issue; $50,000 + 1/2 remainder without issue. No marriage-length scale (§§ 33-1-5, -6, -10; 33-28-1) |
| Estate base and nonprobate transfers | Individually titled real estate at death plus personal estate subject to probate; Chapter 33-28 states no augmented-estate or nonprobate-transfer recapture (§ 33-28-1(a)) |
| Deductions, exclusions, and valuation | Personalty is surplus after debts, funeral charges, and administration expenses; fee allowance is net of encumbrances and unavailable if needed for debts. Share may be in kind or value; no general valuation date (§§ 33-1-6, -10; 33-28-1) |
| Deadline, extensions, and withdrawal | When spouse receives a will gift: 6 months after first publication of fiduciary qualification; timely extension may not exceed 9 months after death. Withdrawal before final probate determination (§ 33-28-4) |
| Filing, service, and court procedure | File probate-court written waiver/renunciation of will gifts and petition; record it in each other city/town where decedent realty lies; give hearing notice to interested and adversely affected persons (§ 33-28-4(a)) |
| Waiver and agreement requirements | Before or after marriage: spouse-signed writing, no consideration; subject to voluntariness and unconscionability-plus-disclosure safeguards. No witness or notary term (§ 33-28-3) |
| Payment sources and recipient liability | Realty interests and probate personalty, in kind or value; probate order may be enforced by contribution/payment suit. Chapter 33-28 states no nonprobate-recipient priority ladder (§§ 33-28-1(a), -4(d)) |
| Effect of election and other spousal rights | Will devise/bequest bars the share unless renounced; Chapter 33-10 allowances remain additional and are not charged against the share (§§ 33-28-1(b), -4(a)) |
Compare this rule across all 50 states + DC →
Requirements one by one
Rhode Island combines three different interests
The elective share is not one percentage of a combined estate. Section
33-28-1 incorporates three components:
- a life estate in real estate titled to the decedent individually at death;
- a discretionary allowance of Rhode Island real estate in fee, worth up to
$150,000 above encumbrances and available only if the property is not needed
to pay debts; and - the spouse's § 33-1-10 share of personal property administered in probate.
The personal-property formula turns on descendants, not marriage length. If
issue survives, the spouse receives one-half of the net surplus. If no issue
survives, the spouse receives $50,000 plus half the remainder. For example, a
$250,000 net personal estate produces a $125,000 personal-property share when
issue survives, or $150,000 when none survives.
The base is probate property, not an augmented estate
Section 33-28-1 limits the real-estate component to property titled in the
decedent's individual name at death and identifies the personal-property
component as the estate “subject to probate.” The complete four-section chapter
does not add revocable trusts, survivorship property, beneficiary designations,
recent transfers, or the surviving spouse's own property to an augmented base.
Section 33-1-10 calculates the personal-property share only after just debts,
funeral charges, and estate-settlement expenses. Section 33-1-6 measures the
fee allowance above encumbrances and excludes real estate needed to pay debts.
The elective share itself may be delivered in kind or as its value.
The election has a publication-based clock
When the will devises or bequeaths property to the spouse, § 33-28-4 says the
gift bars the elective share unless the spouse files the waiver, renunciation,
and petition within six months after the first publication of the fiduciary's
qualification. The spouse may request an extension within that same six-month
period, but the extended deadline cannot exceed nine months after death.
The separate petition for the discretionary § 33-1-6 real-estate allowance also
has a six-month publication-based deadline. A spouse may withdraw the elective-
share waiver and petition until the probate court enters its final
determination.
Probate filing may be followed by municipal recording
The filing is a written statement waiving and renouncing the will devise or
bequest and petitioning the probate court for the elective share. If the
decedent owned real estate in a Rhode Island city or town other than the place
where the will is probated, the same waiver and petition must also be filed in
the deed records of every such municipality.
The spouse must give notice of the hearing's time and place to interested
persons and people adversely affected by the election. Chapter 33-28 does not
add verification, acknowledgment, notarization, a prescribed service method,
or an attachment list.
A representative can act for a living spouse
The spouse must still be living when the petition is filed. The spouse may act
personally, or a conservator, guardian, or agent with power-of-attorney
authority may act on the spouse's behalf. For an incapacitated spouse, the
probate court may direct an in-kind transfer or payment to the personal
representative on terms the court finds to be in the spouse's best interest.
A signed agreement can waive the right
Section 33-28-3 permits a complete or partial waiver before or after marriage
through a written contract, agreement, or waiver signed by the surviving
spouse. No consideration is required. The section states no witness or notary
requirement.
The spouse may defeat enforcement by proving involuntary execution, or by
proving execution-time unconscionability together with the statute's lack-of-
disclosure, no-written-disclosure-waiver, and inadequate-knowledge conditions.
Unless the document says otherwise, an “all rights” waiver also reaches the
elective share, Chapter 33-10 allowances, intestate benefits, and benefits under
an earlier will.
Election replaces will gifts but not family allowances
A devise or bequest to the spouse bars the elective share unless the spouse
waives and renounces it through the statutory filing. Chapter 33-10 allowances,
if available, are different: § 33-28-1(b) says they are additional and are not
charged against the elective share.
The probate court may order the share delivered in kind or paid as value. Its
order may be enforced through a contribution or payment suit in Rhode Island or
another jurisdiction, but Chapter 33-28 does not create an augmented-estate
collection ladder against named classes of nonprobate recipients.
What trips people up
- The $150,000 real-estate allowance is not automatic. The probate court
has discretion, the property must not be needed for debts, and the allowance
requires its own timely petition. - The nine-month period is only an outside limit on an extension. The
spouse must request the extension within the ordinary six-month period. - A second filing location may be required. Real estate outside the city or
town of probate triggers a filing in that municipality's deed records. - The share is not an augmented-estate percentage. Individually titled
realty and probate personalty are the statutory base; the chapter does not
enumerate nonprobate transfers for recapture.
Common questions
What if the decedent was domiciled outside Rhode Island? Section 33-28-1(c)
says the law of the decedent's domicile at death governs any elective-share
right in Rhode Island property.
What happens if one parcel is worth more than $150,000 and cannot reasonably
be divided? Section 33-1-6 permits the court to order a sale and set aside up
to $150,000 from the proceeds. Any surplus remains real estate for descent and
distribution purposes.
When does title to real estate set aside under § 33-1-6 pass for a later
conveyance? A certified copy of the probate decree must be recorded in the
land-evidence records of the city or town where the property is located.
Statutes and sources
- R.I. Gen. Laws § 33-28-1 — elective-share components, in-kind or value
route, additional Chapter 33-10 allowances, and nonresident-domicile rule.
Official Rhode Island General Assembly
text
(accessed 2026-08-02). - R.I. Gen. Laws § 33-28-2 — living-spouse requirement, representative
election, and incapacitated-spouse transfer terms. Official Rhode Island
General Assembly
text
(accessed 2026-08-02). - R.I. Gen. Laws § 33-28-3 — pre- and postmarriage waiver, signed writing,
no consideration, enforceability safeguards, and broad-waiver effect.
Official Rhode Island General Assembly
text
(accessed 2026-08-02). - R.I. Gen. Laws § 33-28-4 — will-gift renunciation, deadline, extension,
probate and deed-record filings, hearing notice, withdrawal, and enforcement.
Official Rhode Island General Assembly
text
(accessed 2026-08-02). - R.I. Gen. Laws §§ 33-1-5 and 33-1-6 — life estate and discretionary
real-estate allowance. Official §
33-1-5
and official §
33-1-6
(accessed 2026-08-02). - R.I. Gen. Laws § 33-1-10 — net personal-property base and descendant-
based share. Official Rhode Island General Assembly
text
(accessed 2026-08-02).
Source links
Every statute quoted above, linked, with the date we checked it.
Get the answer for your situation
You just read how Rhode Island handles this in general. Ask your specific question and see which parts of current Rhode Island law apply to your facts, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.