Utah’s elective share law, codified at Utah Code Section 75-2-201, gives a surviving spouse the right to claim a portion of the deceased spouse’s estate regardless of what the will or trust says. The elective share is designed to prevent a spouse from being completely disinherited and applies to both probate and certain nonprobate assets included in the augmented estate.
Last updated: July 2026
Key Takeaways
- The elective share allows a surviving spouse to claim one-third of the augmented estate under Utah Code Section 75-2-202.
- The augmented estate includes probate assets, certain nonprobate transfers, and property the surviving spouse already owns.
- The election must be filed within nine months of the decedent’s death or six months of will probate, whichever is later.
- A valid prenuptial or postnuptial agreement can waive the elective share right.
- The elective share does not apply to spouses who have been divorced or who abandoned the marriage under Utah law.
The elective share exists because Utah law recognizes that marriage creates mutual obligations of support that should not be defeated by one spouse’s will. If a husband writes his spouse out of his will and leaves everything to a charity or a child from a prior marriage, the surviving spouse can elect to take a statutory share instead of the bequest left in the will. This right is personal to the surviving spouse and cannot be exercised by creditors or other heirs.
What many Utah residents do not realize is how broadly the augmented estate is defined. The elective share is not limited to assets that pass through probate. It includes assets the deceased spouse transferred during life in certain circumstances, retirement accounts, life insurance, and even some trusts. Understanding what counts toward the augmented estate is critical for anyone planning an estate in a blended family situation.
How is the Utah elective share calculated?
Under Utah Code Section 75-2-202, the elective share amount is equal to one-third of the augmented estate minus the value of any property the surviving spouse receives from the decedent’s estate, including bequests under the will, intestate shares, and certain nonprobate transfers. The surviving spouse receives the first $75,000 of the estate before the one-third calculation if the spouse is also entitled under intestacy, but the elective share itself is calculated on the entire augmented estate.
The augmented estate is the sum of four categories: the decedent’s net probate estate, the decedent’s nonprobate transfers to others, the decedent’s nonprobate transfers to the surviving spouse, and the surviving spouse’s own property and nonprobate transfers from the decedent. This comprehensive definition prevents a spouse from hiding assets through nonprobate transfers to defeat the elective share.
What assets are included in the augmented estate for the Utah elective share?
The augmented estate includes the decedent’s probate estate after deducting funeral expenses, administration costs, debts, and certain taxes. It also includes nonprobate transfers that the decedent controlled during life, such as revocable trusts, payable-on-death accounts, and joint accounts. Retirement accounts and life insurance proceeds are included to the extent the decedent retained the right to change beneficiaries.
Property the decedent gave away within two years of death may also be included if the decedent retained certain rights or powers. The augmented estate includes the surviving spouse’s own assets and property the spouse received from the decedent outside of probate. The law also includes the value of any property that the decedent transferred with the intent to defeat the elective share, even if the transfer occurred more than two years before death.
How does a surviving spouse elect the share in Utah?
The surviving spouse must file a written election with the Utah probate court within nine months of the decedent’s death or within six months of the probate of the decedent’s will, whichever is later. The election is made under Section 75-2-205 and must be filed with the court and served on the executor or administrator of the estate.
Once the election is filed, the surviving spouse is entitled to receive the elective share amount from the probate estate and from the nonprobate assets included in the augmented estate. The court determines which assets satisfy the elective share and can order the executor or trustee to transfer assets accordingly. The surviving spouse can waive the elective share at any time before the court issues a final order.
The elective share under Utah Code Section 75-2-202 is one-third of the augmented estate, reduced by the value of property the surviving spouse receives from the decedent’s estate outside the election.
Can the elective share be waived in Utah?
Yes. A surviving spouse can waive the elective share through a valid prenuptial or postnuptial agreement under Utah law. The waiver must be in writing, signed voluntarily, and made with fair disclosure of the decedent’s assets. If the waiver is contained in a prenuptial agreement, the party seeking to enforce the waiver must show that the agreement was validly executed and not unconscionable.
Utah courts will enforce a waiver if it was knowingly and voluntarily made. However, courts may invalidate a waiver if the surviving spouse was pressured, misled about the estate’s value, or signed under duress. A waiver of elective share rights should be prepared by separate legal counsel for each spouse to avoid later challenges.
What disqualifies a surviving spouse from the Utah elective share?
Under Utah Code Section 75-2-213, a surviving spouse is not entitled to the elective share if the marriage was dissolved by a decree of divorce or annulment before the decedent’s death. A spouse who abandoned the decedent without cause and who continued in desertion until death may also be barred from claiming the elective share.
A spouse who is convicted of killing the decedent is disqualified from receiving any benefit from the estate, including the elective share, under Utah’s slayer statute. Additionally, if the surviving spouse and the decedent were legally separated at the time of death, the court may consider the circumstances in determining whether the elective share should apply.
| Category | Included in Augmented Estate | Utah Code |
|---|---|---|
| Probate estate | Yes (minus expenses and debts) | 75-2-203 |
| Revocable trusts | Yes | 75-2-203 |
| Retirement accounts | Yes (if decedent controlled beneficiary) | 75-2-203 |
| Life insurance | Yes (if decedent owned the policy) | 75-2-203 |
| Gifts within 2 years of death | Yes | 75-2-203 |
| Joint accounts with third parties | Yes | 75-2-203 |
Frequently Asked Questions
Does the elective share apply to trusts in Utah?
Yes. Assets in a revocable living trust created by the deceased spouse are included in the augmented estate for elective share purposes. The surviving spouse can claim the elective share from the trust assets even if the trust states otherwise.
Can the elective share be claimed against life insurance proceeds in Utah?
Life insurance proceeds are included in the augmented estate if the deceased spouse owned the policy and retained the right to change beneficiaries. The elective share can reach these proceeds.
How does the Utah elective share interact with Medicaid planning?
Elective share claims can complicate Medicaid estate recovery. Surviving spouses should consult with an elder law attorney to understand how the elective share interacts with Medicaid planning and recovery claims.
Can I disinherit my spouse through a trust in Utah?
No. A trust that intentionally disinherits a spouse will be included in the augmented estate for elective share purposes. The surviving spouse can elect against the trust and receive the statutory share.
What happens if the surviving spouse is also the executor of the will?
The surviving spouse can still elect the share. However, the spouse as executor has a fiduciary duty to all beneficiaries and must administer the estate impartially while also asserting personal rights.
Does the elective share apply to same-sex spouses in Utah?
Yes. Same-sex spouses who are legally married in Utah have the same elective share rights as opposite-sex spouses under Utah law.
What if the surviving spouse dies before filing the election?
The elective share right is personal to the surviving spouse. If the spouse dies before filing the election, the right expires and cannot be exercised by the spouse’s estate or heirs.
Can the elective share be modified by a postnuptial agreement?
Yes. A valid postnuptial agreement can modify or waive the elective share if it is in writing, signed voluntarily, and made with full disclosure of assets.
When should a Utah spouse consider the elective share?
A surviving spouse should consider the elective share whenever the will or trust leaves the spouse less than the spouse would receive under the statutory formula. However, the calculation is complex, and the election has consequences for the entire estate plan, including potential tax implications and the loss of other benefits provided by the will or trust.
Before filing an elective share claim, a surviving spouse should consult with a Utah probate attorney who can calculate the augmented estate accurately and explain the trade-offs between accepting the will’s provisions and taking the elective share.
Planning your estate in Utah? Jeremy D. Eveland, MBA, JD, can help you create a comprehensive estate plan that protects your legacy and your loved ones.
Call (801) 613-1472 or visit jeremyeveland.com to schedule a consultation today.
This article is for informational purposes only and does not constitute legal advice. Consult with a qualified Utah estate planning attorney for advice specific to your situation.
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