Spousal Elective Share Requirements in Utah

At a glance

Requirements one by one

One-third plus a conditional supplement

Utah Code § 75-2-202 gives the surviving spouse one-third of the augmented estate. It also creates a supplemental amount when the statute's listed satisfaction sources and payable share components total less than $75,000. The supplement is the difference between $75,000 and that statutory sum; it is not a simple promise that every spouse receives $75,000 in cash.

There is no marriage-duration schedule. The same one-third fraction applies regardless of how long the spouses were married, while marriage timing matters through the separate-property and transfer rules.

What enters—and leaves—the augmented estate

Sections 75-2-203 through 75-2-207 combine four categories: the decedent's net probate estate, nonprobate transfers to others, nonprobate transfers to the spouse, and the spouse's own property and hypothetical nonprobate transfers. The nonprobate category can reach joint and POD/TOD property, specified beneficiary powers, limited insurance value, retained-benefit or retained-power transfers, and specified transfers during the final two years.

Section 75-2-208 then removes separate property. That category includes premarital property, gifts and inheritances from third parties, exchange property, property designated separate by waiver, and part of a personal-injury recovery. Income and appreciation on separate property remain separate. The statute rebuttably presumes property is not separate, even if commingled.

Probate property is reduced by funeral and administration expenses, statutory allowances, exempt property, and enforceable claims. Included nonprobate property is also reduced by enforceable claims. Adequate-consideration transfers and transfers joined or consented to in writing by the spouse are excluded.

Two clocks and nonprobate reach

Under § 75-2-211, the ordinary deadline is the later of nine months after death or six months after probate of the will. The spouse files the court petition and mails or delivers it to the personal representative.

The nine-month mark still matters even when the six-month-after-probate date is later. A petition filed after nine months ordinarily loses the decedent's nonprobate transfers to others from the calculation. To preserve that reach, the spouse must petition for an extension and notify everyone interested in those transfers within nine months after death, then show cause to the court. The demand may be withdrawn before the court's final determination.

Credits, contribution, and representative elections

Utah uses credits rather than automatic renunciation. Property passing to the spouse, the spouse's own included property, separate property received at death, and homestead, exempt-property, and family allowances are applied first. A shortfall then moves through probate and nonprobate recipients in statutory proportional tiers. Covered recipients may return property or pay its value.

A living spouse may elect personally or through a conservator, guardian, or power-of-attorney agent. When the spouse is incapacitated, the court places the contribution portion in a support trust under § 75-2-212.

Waiver safeguards

Section 75-2-213 permits a whole or partial waiver before or after marriage in a writing signed by the surviving spouse. A waiver is unenforceable if it was involuntary. It is also unenforceable if it was unconscionable and the spouse lacked the specified disclosure, written disclosure waiver, and adequate knowledge. Unless the document says otherwise, an “all rights” waiver or a complete separation/divorce property settlement reaches the elective share and the listed allowances and succession benefits.

What trips people up

• $75,000 is a formula, not a flat minimum check. The statute subtracts specified satisfaction sources and payable share components.
• Separate property is excluded on both sides. The decedent's and the survivor's qualifying separate property does not enter the augmented estate.
• The later ordinary deadline can still be too late for nonprobate assets. The nine-month extension procedure preserves that reach.
• Statutory allowances are credits. Homestead allowance, exempt property, and family allowance are not added on top of the elective share.

Common questions

Does the spouse give up every will gift by electing? The cited statutes do not impose a blanket renunciation. Property received by will or intestacy is applied toward satisfying the share.

Can property given away shortly before death be counted? Yes, in the specific two-year categories in § 75-2-205, including otherwise-unincluded transfers exceeding $10,000 to one donee in either year.

Can an agent under a power of attorney file? Yes. Section 75-2-212 expressly allows an authorized agent, as well as a conservator or guardian.

Can the spouse withdraw the petition? Yes, any time before the court enters its final determination.

Statutes and sources

• Utah Code §§ 75-2-202 to 75-2-204 — one-third share, supplemental formula, statutory-benefit credits, domicile, augmented-estate composition, and net probate estate. Official Utah Code Part 2 PDF (accessed 2026-08-02).
• Utah Code §§ 75-2-205 to 75-2-208 — nonprobate transfers, spouse property, separate-property exclusions, claims, valuation, and overlap. Official Part 2 PDF (accessed 2026-08-02).
• Utah Code §§ 75-2-203 through 75-2-207 — § 75-2-203's cross-reference to the four augmented-estate component sections. Official Part 2 PDF (accessed 2026-08-16).
• Utah Code §§ 75-2-209 and 75-2-210 — satisfaction priorities, proportional contribution, recipient liability, and return-of-property option. Official Part 2 PDF (accessed 2026-08-02).
• Utah Code §§ 75-2-211 and 75-2-212 — filing, notice, two deadline effects, extension, withdrawal, representative election, and incapacitated-spouse trust. Official Part 2 PDF (accessed 2026-08-02).
• Utah Code § 75-2-213 — signed waiver and enforceability safeguards. Official Part 2 PDF (accessed 2026-08-02).