Alabama Surviving Spouse Rights

Alabama law protects a surviving spouse from being left with nothing, even when a will says otherwise. A surviving spouse can elect a statutory share of the estate, claim a homestead allowance, claim exempt property, receive a family allowance during administration, and take an intestate share when there is no will. Several of these rights stack on top of one another and on top of whatever the will or intestacy already gives the spouse, which makes Alabama more generous to spouses than states that offset one right against another.

These protections run through the County Probate Court that administers the estate, alongside the broader Alabama probate guide. This guide explains what each right is worth, which statute creates it, and how the pieces fit together. The dollar figures below are the Alabama base amounts and the current inflation-adjusted amounts the State Treasurer sets under Ala. Code 43-8-116 for claims on or after April 1, 2024.

Overview of Spousal Rights

Alabama gives a surviving spouse five distinct protections:

Elective share - the right to elect a statutory share of the estate instead of taking under the will (Ala. Code 43-8-70 through 43-8-76).
Homestead allowance - a set dollar amount that has priority over estate claims (Ala. Code 43-8-110).
Exempt property - a set dollar value in household goods, vehicles, and personal effects (Ala. Code 43-8-111).
Family allowance - support money paid during administration (Ala. Code 43-8-112).
Intestate share - the spouse's inheritance when there is no valid will (Ala. Code 43-8-41).

These Rights Stack

The homestead allowance, exempt property, and family allowance are each in addition to any benefit passing to the spouse by will, by intestate succession, or by elective share, unless the will provides otherwise (Ala. Code 43-8-110 through 43-8-112). This is different from states that offset an allowance against the inherited share. In Alabama, a spouse can receive an inheritance and the allowances on top of it.

What the Elective Share Is

A surviving spouse of a decedent domiciled in Alabama may elect to take an elective share instead of what the will leaves. Under Ala. Code 43-8-70(a), the elective share equals the lesser of:

all of the decedent's estate reduced by the value of the surviving spouse's separate estate, or
one-third of the decedent's estate.

The one-third figure is the ceiling. If the spouse already owns a substantial separate estate, the first measure can produce a smaller number, and the spouse takes the lesser of the two.

The Spouse's Separate Estate

The value of the spouse's own property reduces the first measure. Under Ala. Code 43-8-70(b), the spouse's separate estate includes property the spouse owns outright immediately after the death, legal and equitable interests acquired by surviving the decedent, income and beneficial interests under trusts, proceeds of insurance on the decedent's life, and interests under employer-sponsored plans.

No Augmented Estate

Alabama did not adopt the augmented-estate version of the elective share that some Uniform Probate Code states use. The election applies to the decedent's estate offset by the spouse's separate estate, not to a reconstructed pool of lifetime transfers. The elective share is also separate from the allowances and is analyzed on its own (Ala. Code 43-8-70 through 43-8-76).

Choosing Among the Options

A surviving spouse usually compares three paths: take under the will, elect the statutory share, or take the intestate share if there is no will. Because the allowances stack on top of every path, the comparison is really about which distribution path pays the most before the allowances are added. A licensed Alabama attorney can run the numbers for a specific estate.

Homestead Allowance

The homestead allowance is a fixed dollar amount that comes off the top of the estate for the surviving spouse. Under Ala. Code 43-8-110, the base amount is $15,000, and the State Treasurer's inflation adjustment raises it to $18,800 for claims on or after April 1, 2024.

Key features:

In addition to the inheritance. The allowance is on top of any share passing by will, intestacy, or elective share, unless the will provides otherwise.
Priority over claims. It is exempt from and has priority over all claims against the estate, and it even ranks ahead of the family allowance and the exempt-property deficiency right.
Constitutional homestead offset. The value of any constitutional right of homestead in the family home that the spouse receives is charged against the allowance (Ala. Code 43-8-110(b)), so the two are not double-counted.
No spouse. If there is no surviving spouse, each minor child and each dependent child shares the allowance equally.

This $18,800 is also one of three figures that make up Alabama's combined small-estate amount. See the Alabama small estate guide for how those figures set the summary-distribution threshold.

Exempt Property

Separate from the homestead allowance, the surviving spouse may claim exempt property under Ala. Code 43-8-111. The base value is $7,500, adjusted to $9,400 for claims on or after April 1, 2024, measured in value over any security interests.

Exempt property covers household furniture, automobiles, furnishings, appliances, and personal effects up to the adjusted cap. If the qualifying items are worth less than the cap, the spouse is entitled to other estate assets to make up the difference. If there is no surviving spouse, the decedent's children are jointly entitled to the exempt property.

Because the cap is measured over security interests, a financed car counts only for its equity. The lender keeps its lien on the balance owed.

Family Allowance

The family allowance is support money paid to the surviving spouse during administration under Ala. Code 43-8-112 and 43-8-113. It is a reasonable amount for the maintenance of the spouse and the minor children the decedent was obligated to support or was in fact supporting.

The personal representative can set the family allowance without a separate court order up to a lump sum of $15,000 base ($18,800 adjusted for claims on or after April 1, 2024), or in periodic installments of up to $500 per month. On a petition, the court may allow more or less than those amounts.

Timing and priority:

Duration. It is payable during administration, and not longer than one year if the estate cannot pay its allowed claims.
Priority. It is exempt from and has priority over all claims, but it does not outrank the homestead allowance.
On top of the share. Like the other allowances, it is not charged against any benefit passing by will, intestacy, or elective share, unless the will provides otherwise.

Payment can be a lump sum or installments, which is why the family allowance matters early: it is cash support the spouse can receive before the estate closes.

When there is no valid will, the surviving spouse's share is set by Ala. Code 43-8-41 and turns on whether the decedent left descendants (issue) and whether a parent survives.

Family situation	Surviving spouse receives
No surviving issue and no surviving parent	The entire intestate estate
No surviving issue, but a parent or parents survive	The first $100,000 plus one-half of the balance
Surviving issue, all of whom are also the spouse's	The first $50,000 plus one-half of the balance
Surviving issue, one or more of whom are not the spouse's	One-half of the intestate estate

A child from outside the marriage drops the spouse to a flat one-half, with no dollar amount off the top. The Alabama intestate succession guide covers the full heir order and how the remainder passes to the decedent's issue.

Waiver and Forfeiture

Surviving-spouse rights are not automatic in every case. A few situations remove or reduce them.

Waiver by Agreement

A spouse can give up the elective share and the allowances in advance through a written marital agreement, such as a prenuptial or postnuptial agreement. Whether a particular waiver holds up depends on how it was signed and disclosed, so confirm the requirements under Ala. Code 43-8-70 through 43-8-76 with a licensed Alabama attorney before relying on one.

Divorce and Disqualification

Divorce or annulment generally ends surviving-spouse status. Ala. Code 43-8-252 lists further disqualifications, such as consenting to an invalid divorce decree or remarrying after a divorce obtained by the decedent. A person who is not a surviving spouse under these rules cannot claim the spouse's share or the allowances.

The Slayer Rule

Under Ala. Code 43-8-253, a surviving spouse who feloniously and intentionally kills the decedent is not entitled to any benefit under the will or under intestacy, and the estate passes as if the killer had predeceased the decedent. The rule also severs survivorship interests and beneficiary designations.

Five-Day Survival

A spouse who fails to survive the decedent by five days is treated as having predeceased for purposes of the homestead allowance, exempt property, and intestate succession (Ala. Code 43-8-43).

Deadlines

Alabama's source data sets some timing rules and leaves others to the County Probate Court. Confirm anything time-sensitive with the court that opened the estate.

Right	Timing
Survival for allowances and intestate share	The spouse must survive the decedent by five days (Ala. Code 43-8-43)
Family allowance duration	Payable during administration; not longer than one year if the estate cannot pay allowed claims (Ala. Code 43-8-112)
Homestead allowance and exempt property	No fixed statutory claim deadline is set in the source data; select and claim during administration and confirm timing with the County Probate Court (Ala. Code 43-8-113)
Elective share election	Governed by Ala. Code 43-8-70 through 43-8-76; confirm the current filing deadline with the County Probate Court or a licensed Alabama attorney

The dollar amounts above are adjusted for inflation every three years under Ala. Code 43-8-116. The figures shown apply to claims on or after April 1, 2024. The next adjustment is scheduled for July 1, 2026, so recheck the current amounts after that date.

Frequently Asked Questions

Can a spouse be disinherited in Alabama?

Not completely. Even if the will leaves the spouse nothing, the surviving spouse can elect a statutory share equal to the lesser of the estate reduced by the spouse's separate estate or one-third of the estate (Ala. Code 43-8-70), and can claim the homestead allowance, exempt property, and family allowance on top of it.

How much is the Alabama elective share?

The elective share is the lesser of (1) all of the decedent's estate reduced by the value of the surviving spouse's separate estate, or (2) one-third of the decedent's estate (Ala. Code 43-8-70). Alabama does not use an augmented-estate calculation.

Do the allowances reduce the spouse's inheritance?

No. The homestead allowance ($18,800 adjusted), exempt property ($9,400 adjusted), and family allowance ($18,800 adjusted lump-sum cap) are each in addition to any share passing by will, intestacy, or elective share, unless the will provides otherwise (Ala. Code 43-8-110 through 43-8-112).

What does a surviving spouse inherit if there is no will?

It depends on the family. The spouse takes the entire estate with no surviving issue or parent, the first $100,000 plus half if a parent survives, the first $50,000 plus half if all children are shared, and one-half if any child is from outside the marriage (Ala. Code 43-8-41).

Alabama Intestate Succession - the spouse's share and heir order when there is no will
Alabama Small Estate: Summary Distribution - how the allowances set the small-estate amount
Alabama Probate Guide - how an estate moves through the County Probate Court
How to Avoid Probate in Alabama - survivorship, trusts, and beneficiary transfers
Alabama Executor Duties - who sets and pays the allowances
Alabama Probate Assessment - map your estate to the right next step

Sources

Title: Ala. Code Section 43-8-70, Right of Surviving Spouse to Elective Share. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-4/section-43-8-70/
Title: Ala. Code Section 43-8-110, Homestead Allowance. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-6/section-43-8-110/
Title: Ala. Code Section 43-8-111, Exempt Property. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-6/section-43-8-111/
Title: Ala. Code Section 43-8-112, Family Allowance. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-6/section-43-8-112/
Title: Ala. Code Section 43-8-113, Source, Determination and Documentation of Exempt Property and Allowances. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-6/section-43-8-113/
Title: Ala. Code Section 43-8-116, Adjustments to Exemption Values. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-6/section-43-8-116/
Title: Ala. Code Section 43-8-41, Share of the Spouse. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-3/section-43-8-41/
Title: Ala. Code Section 43-8-43, Requirement That Heir Survive Decedent for Five Days. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-3/section-43-8-43/
Title: Ala. Code Section 43-8-253, Effect of Homicide on Intestate Succession, Wills, Joint Assets, and Beneficiary Designations. Publisher: Code of Alabama via Justia. Publication Date: 2025 code, accessed 2026-07-01. URL: https://law.justia.com/codes/alabama/title-43/chapter-8/article-9/section-43-8-253/
Title: Code of Alabama 1975 (official portal), including Ala. Code Section 43-8-252 (disqualification of surviving spouse). Publisher: Alabama Legislature (ALISON). Publication Date: Current official code, accessed 2026-07-01. URL: https://alison.legislature.state.al.us/code-of-alabama
Title: Consumer Price Index adjusted exemption amounts ($18,800 homestead and family allowance; $9,400 personal property). Publisher: Alabama State Treasurer. Publication Date: Effective for claims on or after April 1, 2024, accessed 2026-07-01. URL: https://treasury.alabama.gov/cpi-information/

This guide is general information about Alabama surviving spouse rights. Confirm anything that affects your situation with the County Probate Court or a licensed Alabama attorney. It is not legal advice.