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Georgia Surviving Spouse Rights in Probate
Support GuideGeorgia13 min read

Georgia Surviving Spouse Rights in Probate

Georgia surviving spouse rights explained: no elective share, year's support as the key protection, and the intestate child's share with a one-third minimum.

By Settled Editorial

Georgia surviving spouse rights work differently from what many families expect. Georgia does not have an elective share, so a surviving spouse is not promised a fixed percentage of a deceased spouse's estate. A valid will can leave a spouse out of the probate estate. The main protection Georgia gives a surviving spouse is year's support, a petition to the county Probate Court for property to support the spouse and any minor children for the 12 months after death.

This guide explains what a surviving spouse can and cannot claim in Georgia: year's support and how it works, why there is no elective share, the intestate share when there is no will, and a few narrower protections. It is not legal advice. Spousal rights turn on the will, the family tree, asset title, creditor facts, and county practice, so verify open questions with the county Probate Court or a Georgia probate attorney before acting.

Overview of Spousal Rights

A surviving spouse in Georgia should separate three different questions, because they have different answers.

  1. Was there a valid will? If so, the will controls who takes the probate estate. Georgia has no elective share to override it, so the spouse is not entitled to a set percentage against the will.
  2. Can the spouse petition for support? Yes. Year's support is available whether the decedent died with a will or without one, and it takes priority over most debts and demands.
  3. Was there no will? Then Georgia intestacy under O.C.G.A. 53-2-1 gives the spouse a share, measured as a child's share with a one-third floor.

These protections do not add up to one fixed number. Year's support is the central one, and it is need based rather than a set dollar amount. The sections below take each in turn.

Year's Support

Year's support is the heart of Georgia surviving spouse rights. Under O.C.G.A. 53-3-1, the surviving spouse and the minor children of a decedent, whether the decedent died testate or intestate, are entitled to year's support in the form of property from the estate for their support and maintenance for the 12 months after death. The same statute treats year's support as one of the expenses of administration and says it is preferred before other debts or demands, except where the year's-support chapter provides otherwise.

Two features make year's support powerful.

It has priority over most claims. Under O.C.G.A. 53-7-40, when the Probate Court sorts out who gets paid from an estate, year's support for the family comes first, ahead of funeral expenses, other administration expenses, last-illness expenses, unpaid taxes, secured interests by lien priority, and general creditor claims. Because year's support comes first and the statute sets no fixed dollar cap on it, an award can consume much or all of a smaller estate before general creditors or other heirs receive anything.

It is need based, not a set percentage. The amount is not a flat figure. Using the standard Petition for Year's Support (GPCSF 10), the Probate Court sets an amount meant to maintain the standard of living the surviving spouse and each minor child had before death for 12 months, while taking into account other support available to that person, the solvency of the estate, and other criteria the court finds proper. Year's support can be cash, an account, personal property, a vehicle, or an interest in real property.

The process runs through the county Probate Court:

  • The surviving spouse, or a guardian or other person acting for a minor child, files the petition under O.C.G.A. 53-3-5 in the Probate Court with jurisdiction over the estate.
  • The petition describes the property proposed to be set apart, and interested persons receive notice and a chance to object.
  • If the award includes an interest in Georgia real property, O.C.G.A. 53-3-11 describes filing a certificate in the superior court deed records for the county where the property sits, so the title record reflects the transfer.

For the full filing walkthrough, deadlines, and county checks, see the Georgia year's support guide.

No Elective Share in Georgia

Many states have an elective share: a statutory right that lets a surviving spouse claim a set percentage of the estate regardless of what the will says. Georgia is not one of them. There is no Georgia elective share, so a surviving spouse cannot force a fixed percentage of the probate estate against a valid will.

This surprises families who have read about spousal protection in other states. In an elective-share state, a will that leaves the spouse nothing can be overridden up to the statutory percentage. In Georgia, a valid will that leaves the spouse out of the probate estate is generally honored on its face. The spouse's protection is not a percentage claim. It is year's support, plus the narrower paths described below, plus the intestate share when there is no will.

That is why year's support matters so much in Georgia. It is the mechanism that keeps a surviving spouse from being left with nothing when a will directs the probate estate elsewhere, because a timely year's-support award has priority over the general creditors and over the will's dispositions of the property the court sets apart.

Intestate Share

When there is no valid will, Georgia intestacy decides the surviving spouse's share of the probate estate. O.C.G.A. 53-2-1 sets the rule.

  • No child or other descendant. The surviving spouse is the sole heir and takes the entire intestate estate.
  • Spouse and one or more descendants. The spouse shares equally with the children, and the descendants of a deceased child take that child's share by branch. In other words, the spouse takes a child's share.
  • The one-third floor. The statute says the spouse's share can never be less than one-third of the estate. So with two or more children, an equal split would drop the spouse below a third, and the one-third minimum lifts the spouse back up to one-third.

A quick way to see the floor: with one child, the spouse and child split the intestate estate equally, one-half each. With two children, an equal three-way split would give the spouse one-third, which meets the floor. With three or more children, the equal share would fall below one-third, so the spouse takes one-third and the children divide the rest.

This is the share of probate property only. Assets that pass by beneficiary designation, survivorship, a trust, or a transfer-on-death deed follow their own path and are not divided by the intestacy rule. For the full heir map, including how descendants of a deceased child take by branch, see the Georgia intestate succession guide.

Other Protections

Beyond year's support and the intestate share, a Georgia surviving spouse may have a few narrower paths, depending on the estate.

Priority for the small deposit affidavit. Under O.C.G.A. 7-1-239, when a person dies intestate with a bank or credit-union deposit of not more than $15,000, the institution may pay the deposit to relatives in a set order after receiving an affidavit. The surviving spouse is first in that order. This is a narrow, deposit-only path. It does not transfer land or a vehicle title. See the Georgia bank deposit affidavit guide.

Agreed no-will division. Under O.C.G.A. 53-2-40, when a person dies without a will and no personal representative has been appointed, the heirs, who include the surviving spouse, can petition for an order declaring that no administration is necessary and divide the estate by agreement using GPCSF 9. See the Georgia no administration necessary guide.

Selecting the administrator. In a no-will estate, O.C.G.A. 53-6-20 lets all heirs unanimously select the administrator, subject to a divorce or separate-maintenance caveat for a sole surviving spouse. Where there is no unanimous selection, the Probate Court appoints under the statute's preference order. See the Georgia letters of administration guide.

Georgia does not model a Florida-style probate homestead shield that bars a spouse from being devised away from the family home. Home and title questions in Georgia are handled through deed records, survivorship, trusts, transfer-on-death deeds, and year's support rather than a constitutional homestead descent rule.

Waiver and Forfeiture

A surviving spouse can lose year's support by timing or by status, so watch these points.

The 24-month deadline. Under O.C.G.A. 53-3-5, a petition for year's support must be filed within 24 months of the date of death, and GPCSF 10 repeats that deadline. Miss the window and the year's-support claim is generally forfeited. Calculate the exact date from the date of death and do not rely on a rough count if the case is close to the 24-month mark.

Remarriage before filing. GPCSF 10 asks whether the petitioner is the surviving spouse who has not married since the decedent's death. Remarriage status at the time of filing can affect a spouse's eligibility to claim year's support, so confirm it before signing.

Agreements and disputes. Spousal rights can also be shaped by a valid marital agreement or by a contested proceeding in the Probate Court. Georgia does not model an automatic waiver of these rights in the source files behind this guide, so if a prenuptial or postnuptial agreement, a separation, or a family dispute is in play, confirm how it affects year's support with a Georgia probate attorney before you file or sign.

Deadlines

Use repo-confirmed dates and verify the exact calculation with the county Probate Court.

RightDeadline
Year's support petition (O.C.G.A. 53-3-5, GPCSF 10)Within 24 months of the date of death
PT-61 for real property set apart in year's supportNo later than the date of the final year's-support order
Intestate share (O.C.G.A. 53-2-1)No separate election deadline; it applies when there is no valid will

The small-deposit affidavit under O.C.G.A. 7-1-239 also has its own timing, including a 45-day point before an institution may apply up to $15,000 of a deposit to funeral or last-illness expenses when no listed family claimant applies. That path is deposit specific and separate from year's support.

Protecting Your Rights

A surviving spouse can take a few practical steps to keep these options open.

Find out whether there is a will. The will decides who takes the probate estate, and because there is no elective share, it controls that question. Locate the will, any codicil, and the letters packet if someone has already filed.

Calendar the year's-support deadline first. The 24-month window under O.C.G.A. 53-3-5 is the one that can be lost by delay. Note the date of death and count forward, and do not wait if the case is near the mark.

Separate probate property from nonprobate property. Accounts with a beneficiary, jointly held property, trust property, and transfer-on-death deeds pass outside probate and outside the intestate share. Sort those before assuming what the estate holds.

Keep records and do not mix funds. Save the death certificate, account statements, deeds, titles, bills, and any notice from the estate. If you may petition for year's support or serve as administrator, contemporaneous records support the numbers you later present to the Probate Court.

Ask before you sign. A year's-support petition, a no-administration agreement, and a bank affidavit are sworn filings. If the family tree, a creditor, a marital agreement, or real property is in play, confirm the path with the county Probate Court or a Georgia probate attorney before signing.

Frequently Asked Questions

Can a spouse be disinherited in Georgia?

From the probate estate, yes. Georgia has no elective share, so a valid will can leave the surviving spouse out of the probate estate. The spouse is not completely without protection, though. Year's support is available whether or not there is a will, and it has priority over most debts and over the will's dispositions of the property the court sets apart.

Does Georgia have an elective share for a surviving spouse?

No. Unlike many states, Georgia does not give a surviving spouse a statutory right to claim a fixed percentage of the estate against the will. The central protection is year's support under O.C.G.A. 53-3-1, decided by the Probate Court on a need basis.

How much is year's support in Georgia?

There is no fixed dollar amount. Under GPCSF 10, the Probate Court sets an amount meant to maintain the standard of living the surviving spouse and each minor child had before death for 12 months, taking into account other support available and the solvency of the estate. Because it has priority and no statutory cap, an award can take much or all of a smaller estate.

What does a surviving spouse inherit with no will in Georgia?

Under O.C.G.A. 53-2-1, a spouse with no children or descendants is the sole heir and takes the entire intestate estate. With children, the spouse shares equally with them as a child's share, and the spouse's part can never be less than one-third of the estate.

Related Guides

Sources

This guide provides general information about Georgia surviving spouse rights. Individual circumstances vary, and procedures differ by county. Consult with a Georgia probate attorney for advice specific to your situation. It is not legal advice.

Information current as of July 1, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Georgia can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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