Can a surviving spouse claim an elective share through her agent in Rhode Island?

Full question:

My father left nothing to my mother in his will. Can my mother claim a share in those properties after my father's death? My mother is physically disabled. So can I claim the rights on her behalf?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Rhode Island

Answer:

Yes. Your mother is entitled to an elective share of your father’s property. Your mother must file the election in writing with the probate court within 6 months after the Will is admitted into probate. Generally, the right of election may be exercised only by your mother when the petition for the elective share is filed in the probate court. Here, since your mother cannot exercise her rights personally, it can be exercised by you as an agent on your mother’s behalf under the authority of a power of attorney.
You can have a look at the relevant law in this regard below:



33 R.I. Gen. Laws Ann. § 33-28-1 
Elective share
 
(a) 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 chapter, to take an elective share equal to the life estate and allowance of an intestate's real estate pursuant to §§ 33-1-5 and 33-1-6, and share of an intestate's personal estate pursuant to § 33-1-10. The elective share may be taken in kind or the value thereof.
(b) If the right of election is exercised by, or on behalf of the surviving spouse, the surviving spouse's allowances pursuant to chapter 10 of this title, if any, are not charged against, but are in addition to, the elective share.
(c) 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.

33 R.I. Gen. Laws Ann. § 33-28-2 
Right of election personal to surviving spouse--Incapacitated surviving spouse
 
(a) The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the probate court pursuant to § 33-28-4(a). If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by the surviving spouse's conservator, guardian, or agent under the authority of a power of attorney.
(b) If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the probate court may authorize transfer of property in kind, or payment of the value thereof, to the spouse's personal representative upon such terms and conditions as the court determines to be in the spouse's best interest.

33 R.I. Gen. Laws Ann. § 33-28-3 
Waiver of right to elect and of other rights
 
(a) The right of election of a surviving spouse and the rights of the surviving spouse to allowances pursuant to chapter 10 of this title may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse. The written contract, agreement, or waiver is enforceable without consideration.
(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that: (1) The surviving spouse did not execute the waiver voluntarily; or (2) The waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse: (i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; (ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and (iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
(c) An issue of unconscionability of a waiver is for decision by the probate court or other court of competent jurisdiction as a matter of law.
(d) Unless it provides to the contrary, a waiver of “all rights” or equivalent language in the property or estate of a present or prospective spouse or a complete property settlement entered into after, or in anticipation of, separation or divorce is a waiver of all rights to elective share and allowances pursuant to chapter 10 of this title by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to that spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

33 R.I. Gen. Laws Ann. § 33-28-4 
Proceeding for elective share--Time limit
 
(a) If any estate, real or personal, be devised or bequeathed to a surviving spouse, the devise or bequest shall bar the elective share unless the surviving spouse shall, within six (6) months after the date of the first publication of the qualifications of the fiduciary of the estate of the deceased spouse, file in the probate court a written statement waiving and renouncing the devise and bequest and petitioning for the elective share. If any of the deceased spouse's real estate is located in any city or town other than that in which the will of the decedent is probated, the waiver and petition shall also be filed in the records of deeds in each city and town where the real estate is located. The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to those whose interests will be adversely affected by the taking of the elective share.
(b) Within six (6) months after the date of the first publication of the qualifications of the fiduciary of the estate of the deceased spouse, the surviving spouse may petition the probate court for an extension of time for making an election not to exceed nine (9) months after the decedent's death, upon notice of the time and place set for hearing, to persons interested in the estate and to those whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw a waiver and petition for an elective share at any time before entry of a final determination by the probate court.
(d) The order or judgment of the probate court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

33 R.I. Gen. Laws Ann. § 33-25-2 
Life estate to spouse
 
(a) Whenever any person shall die leaving a husband or wife surviving, the real estate owned by the decedent in fee simple at his or her death shall descend and pass to the husband or wife for his or her natural life subject, however, to any encumbrances existing at death; provided that the liability, if any, of the decedent to discharge the encumbrance or encumbrances shall not be impaired. The provisions of §§ 33-1-1 and 33-1-2 shall be subject to the provisions of this chapter and of § 33-1-6.
(b) For purposes of this section, any real estate conveyed by the decedent prior to his or her death, with or without monetary consideration, shall not be subject to the life estate granted in subsection (a) if the instrument or instruments evidencing such conveyance were recorded in the records of land evidence in the city or town where the real estate is located prior to the death of the decedent. Nothing in this section shall be construed to require that the instrument or instruments evidencing the conveyance must be recorded prior to the death of the decedent to be valid and thus not subject to the life estate contained herein.

R.I. Gen. Laws § 33-25-4
Election by surviving spouse -- Recording of waiver and claim 
   If any estate, real or personal, be devised or bequeathed to a surviving spouse, the devise or bequest shall bar the life estate unless the surviving spouse shall, within six (6) months after the date of the first publication of the qualifications of the fiduciary of the estate of the deceased spouse, file in the probate court granting probate a written statement waiving and renouncing the devise and bequest and claiming his or her life estate in the real estate of the decedent. If any of this real estate be located in any city or town other than that in which the will of the decedent is probated, the waiver and claim shall also be filed in the records of deeds in each city and town where the real estate is located.