Section 15-11-202 - Elective-share(1)Elective-share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part 2, to take an elective-share amount equal to fifty percent of the value of the marital-property portion of the augmented estate.(2)(a)Supplemental elective-share amount. If the sum of the amounts described in sections 15-11-207, 15-11-209(1)(a), and that part of the elective-share amount payable from the decedent's net probate estate and nonprobate transfers to others under section 15-11-209(3)(a) and (3)(b) is less than fifty thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to fifty thousand dollars, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's net probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in section 15-11-209(3)(a) and (3)(b).(b) The court shall increase or decrease the dollar amount stated in paragraph (a) of this subsection (2) based on the cost of living adjustment as calculated and specified in section 15-10-112.(3)Effect of election on statutory benefits. If the right of election is exercised by or on behalf of the surviving spouse, the exempt property and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.(4)Nondomiciliary. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective-share in property in this state is governed by the law of the decedent's domicile at death.Part 2 repealed and reenacted by 2014 Ch. 296,§ 2, eff. 8/6/2014.This section is similar to former § 15-11-201 as it existed prior to 2014.
OFFICIAL COMMENT
Subsection (b). Subsection (b) implements the support theory of the elective share by providing a $75,000 supplemental elective-share amount, in case the surviving spouse's assets and other entitlements are below this figure.
2008 Cost-of-Living Adjustments. As originally promulgated in 1990, the dollar amount in subsection (b) was $50,000. To adjust for inflation, this amount was increased in 2008 to $75,000. The dollar amount in this subsection is subject to annual cost-of-living adjustments under Section 1-109.
Subsection (c). The homestead, exempt property, and family allowances provided by Article II, Part 4, are not charged to the electing spouse as a part of the elective share. Consequently, these allowances may be distributed from the probate estate without reference to whether an elective share right is asserted.
Historical Note. This Comment was revised in 2008.