What is the elective share of the surviving spouse in Iowa?

Full question:

I want to claim my elective share in my deceased spouse’s will. What is the law on elective share of the surviving spouse in Iowa?

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

Answer:

In Iowa, a surviving spouse has to choose between inheritance under a will or elective share in the deceased spouse’s estate. Until the surviving spouse files an affidavit for claiming elective share, it will be presumed that the surviving spouse is to take the inheritance under the will. In Iowa, the elective share of the surviving spouse comprises of: all of the exempt personal property and 1/3 of the value of the real property, after the debts have been paid off, 1/3 of whatever is remaining of the personal property. The surviving spouse has an option to occupy the homestead in lieu of taking the 1/3 share of real estate of the deceased spouse.
The relevant law on spouse’s elective share is below :
Iowa Code § 633.237 :
Presumption against filing elective share.
 
1. Following the appointment of a personal representative of the estate of the decedent, the personal representative shall cause to be served a written notice upon the surviving spouse pursuant to section 633.40, subsection 5, notifying the surviving spouse that unless, within four months after service of the notice, the spouse files an election in writing with the clerk of court electing the share as set forth in section 633.236 and sections 633.238 through 633.246, the spouse shall be deemed to take under the will or to receive the intestate share. If, within the four-month period following service of the notice, an affidavit is filed setting forth that the surviving spouse is incapable of making the election and does not have a conservator, the personal representative shall make application to the court for an order pursuant to section 633.244.
2. Following the death of a settlor of a revocable trust, the trustee of such revocable trust shall cause to be served a written notice upon the surviving spouse pursuant to section 633.40, subsection 5, notifying the surviving spouse that unless, within four months after service of the notice, the spouse files an election with the trustee electing the share as set forth in section 633.236 and sections 633.238 through 633.246, the spouse shall be deemed to take under the terms of the revocable trust. If, within the four-month period following service of the notice, an affidavit is filed setting forth that the surviving spouse is incapable of making the election and does not have a conservator, the trustee shall make application to the court for an order pursuant to section 633.244.
3. If the surviving spouse has a conservator, notice shall be given to the conservator and the spouse pursuant to subsections 1 and 2.
4. The notice provisions under subsections 1 and 2 are not applicable if the surviving spouse or the spouse's conservator files, at any time, an election to take under the will, receive the intestate share, or take under the revocable trust. If the surviving spouse fails to file an election under this section within four months of the date notice is served, it shall be conclusively presumed that the surviving spouse elects to take under the will, receive the intestate share, or take under the revocable trust.
5. Upon application of the surviving spouse or the spouse's conservator filed before the time for making the election expires, the court may extend the period in which the surviving spouse may make the election.
Iowa Code § 633.238:
Elective share of surviving spouse.
 
1. The elective share of the surviving spouse shall be limited to all of the following:
     a. One-third in value of all the legal or equitable estates in real property possessed by the decedent at any time during the marriage which have not been sold on execution or other judicial sale, and to which the surviving spouse has made no express written relinquishment of right, including but not limited to any relinquishments of rights described in paragraph "d".
     b. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution.
     c. One-third of all personal property of the decedent that is not necessary for the payment of debts and charges.
     d.  (1) One-third in value of the property held in trust not necessary for the payment of debts and charges over which the decedent was a settlor and retained at the time of death the power to alter, amend, or revoke the trust, or over which the decedent waived or rescinded any such power within one year of the date of death, and to which the surviving spouse has not made any express written relinquishment in compliance with subparagraph (2).
          (2) The elective share of the surviving spouse shall not include the value of the property held in a trust described in subparagraph (1), if both of the following are true:
              (a) The decedent created the trust after the date of decedent's marriage to the surviving spouse.
              (b) Every transfer of property into the trust, except for tangible personal property, included a written statement which complied with this subparagraph division. The written statement shall be in boldface type of a minimum size of ten points, signed and dated by the surviving spouse with a valid notarial acknowledgment, and in substantially the following form:
                  By signing below, I acknowledge that I am giving up all rights to enjoyment of the property described above, regardless of whether or not I survive my spouse and regardless of any rights Iowa law otherwise gives to me with respect to such property. I am specifically waiving my elective share in the property described in this waiver.
                  This waiver shall apply regardless of any changes made to the trust in the future, including any change to the beneficiaries of the trust.
 2. When a settlor of a revocable trust transfers real property to the trustee of the revocable trust and the settlor's spouse signs a conveyance of the real property to such trustee which includes a general waiver of rights of dower, homestead, and distributive share, the spouse is only relinquishing the right to that real property and its value under subsection 1, paragraph "a", for the purpose of conveying marketable title to a subsequent purchaser from the trustee and is not relinquishing the right to the value of the real estate under subsection 1, paragraph "d", unless the spouse specifically states in writing an intent to relinquish the right to the value of the real estate under subsection 1, paragraph "d". The relinquishment of right under subsection 1, paragraph "a" shall not prevent the surviving spouse from electing one-third in value of such real property under subsection 1, paragraph "d".
 3. The elective share described in this section shall be in lieu of any property the spouse would otherwise receive under the last will and testament of the decedent, through intestacy, or under the terms of a revocable trust.
 
Iowa Code § 633.240 :
Election to receive homestead.
 
In estates in which the surviving spouse has filed an election and in all intestate estates, whether an election is filed or not, the surviving spouse or the spouse's conservator, if applicable, may, in lieu of the spouse's share in the real property possessed by the decedent at any time during the marriage, which has not been sold on execution or other judicial sale, and to which the surviving spouse has made no express written relinquishment of right, elect to receive a life estate in the homestead. Such election shall be made and entered of record as provided in section 633.245. In making such election, the surviving spouse shall have all the rights as to the personal property provided in section 633.238, subsection 1, paragraphs "b", "c", and "d". In case of failure to make such election, the right to receive the life estate in the homestead shall be waived.
 
Iowa Code Ann. § 633.236
633.236. Right of elective share of surviving spouse
 
When a married person domiciled in Iowa at the time of death dies, the surviving spouse shall have the right to take an elective share under the provisions of sections 633.237 through 633.246. If the surviving spouse has a conservator, the court may authorize or direct the conservator to elect the share as the court deems appropriate under the circumstances.
Iowa Code Ann. § 633.242
633.242. Rights of election personal to surviving spouse
 
The right of the surviving spouse to take an elective share, and the right of the surviving spouse to receive a life estate in the homestead, are personal. They are not transferable and cannot be exercised for the spouse subsequent to the spouse's death. If the surviving spouse dies prior to filing an election, it shall be conclusively presumed that the surviving spouse does not take such elective share.
 
Iowa Code Ann. § 633.240
633.240. Election to receive homestead
 
In estates in which the surviving spouse has filed an election and in all intestate estates, whether an election is filed or not, the surviving spouse or the spouse's conservator, if applicable, may, in lieu of the spouse's share in the real property possessed by the decedent at any time during the marriage, which has not been sold on execution or other judicial sale, and to which the surviving spouse has made no express written relinquishment of right, elect to receive a life estate in the homestead. Such election shall be made and entered of record as provided in section 633.245. In making such election, the surviving spouse shall have all the rights as to the personal property provided in section 633.238, subsection 1, paragraphs “b”, “c”, and “d”. In case of failure to make such election, the right to receive the life estate in the homestead shall be waived.
 
Iowa Code Ann. § 633.241
633.241. Time for election to receive life estate in homestead
 
If the surviving spouse does not make an election to receive the life estate in the homestead and file it with the clerk within four months from the date of service of notice under section 633.237, it shall be conclusively presumed that the surviving spouse waives the right to make the election. The court on application may, prior to the expiration of the period of four months, for cause shown, enter an order extending the time for making the election.