Spousal Elective Share Requirements in Rhode Island
At a glance
| 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)) |
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
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