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Hawaii Surviving Spouse Rights
Pillar GuideHawaii26 min read

Hawaii Surviving Spouse Rights

A Hawaii surviving spouse or reciprocal beneficiary can elect half the marital-property portion of the augmented estate, with three allowances on top.

By Settled Editorial

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Many estates can avoid probate entirely. Assets with beneficiary designations, joint accounts, and trust assets may pass automatically without court involvement.

Hawaii limits how much a will can take away from a husband, a wife, or a registered reciprocal beneficiary. HRS 560:2-202(a) gives the survivor of a person who died domiciled in Hawaii a right to elect fifty per cent of the marital-property portion of the augmented estate, whatever the will says. A supplemental amount raises the total to at least $90,000, and three allowances sit on top of the share rather than inside it.

Three features of the Hawaii answer surprise people who read an older summary first. The share grows with the length of the relationship, because the marital-property portion runs from 3 percent of the augmented estate in the first year to 100 percent at fifteen years. Every dollar figure doubled or nearly doubled in 2023, when Act 158 rewrote the elective share and the allowances. And the same rights belong to a reciprocal beneficiary under a registry Hawaii created in 1997.

Every rule below was read on September 24, 2026 in the Hawaii Revised Statutes published by the Hawaii State Legislature, along with the history note under each section and the text of Act 158 itself. The compilation runs through the 2025 session. The one 2026 act that amends chapter 560 (Act 47) deals with guardianship and conservatorship records, not spousal rights. Section numbers sit beside each rule so you can check them yourself.

This page answers what a survivor can claim under Hawaii law, not what any one survivor should do, which is a question for a licensed Hawaii attorney. For how a Hawaii estate is opened, administered and closed, read the Hawaii probate process.

Four Rights, One Part Of The Code

Hawaii gathers a survivor's claims in article II of the Uniform Probate Code, HRS chapter 560. Each one runs on its own terms and its own section.

  • The elective share. HRS 560:2-202 through 560:2-214 give the right to elect half of the marital-property portion of the augmented estate. This is the part that limits what a will can do.
  • The homestead allowance. HRS 560:2-402 pays $30,000. It is a dollar amount, not a right to live in the house.
  • Exempt property. HRS 560:2-403 hands over up to $20,000 in household furniture, automobiles, furnishings, appliances and personal effects, measured above any security interest in them.
  • The family allowance. HRS 560:2-404 and 560:2-405 supply a reasonable allowance in money for maintenance while the estate is being administered.

HRS 560:2-202(c) settles how the first relates to the other three: when the survivor elects, the homestead allowance, exempt property and family allowance are not charged against the elective share and supplemental amount. They are added to them. Each allowance section says the same about a share taken by will or by intestacy.

Two of the allowances have their own pages here. Hawaii exempt property covers the selection rules under 560:2-403, and the family allowance covers the 560:2-404 entitlement and the 560:2-405 figures.

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Who Counts As A Surviving Spouse Or Reciprocal Beneficiary

HRS 560:2-201 defines a reciprocal beneficiary as an adult who is a party to a registered reciprocal beneficiary relationship under HRS chapter 572C and holds a valid certificate that has not been terminated. HRS 572C-4 limits registration to two adults, neither married nor in another reciprocal beneficiary relationship or civil union, who are legally prohibited from marrying one another under chapter 572. Two siblings, or a parent and an adult child, are the kind of pair the registry serves, because HRS 572-1 bars them from marrying each other.

The relationship has to be in force at the death. Under HRS 572C-7, either party can end it by filing a notarized declaration of termination, and it ends automatically when either party marries or enters a civil union. HRS 560:2-802(b)(4) then excludes anyone without a certificate naming the person who died, and anyone whose relationship was terminated.

A partner in a Hawaii civil union holds a spouse's rights. HRS 572B-9 gives civil union partners the same rights, benefits, protections and responsibilities under law as married spouses.

A divorce or annulment ends spousal status under HRS 560:2-802(a). A decree of separation that does not end the marriage does not. Subsection (b)(3) also excludes a spouse who was a party to a valid proceeding that ended with an order purporting to terminate all marital property rights.

Half Of The Marital-Property Portion, Scaled By Years

Here is how the Hawaii elective share is built, in two steps.

First, add up the augmented estate under HRS 560:2-203(a). Then multiply it by the percentage in the schedule at HRS 560:2-203(b), chosen by how long the couple was married or in the reciprocal beneficiary relationship. That product is the marital-property portion. The elective share under HRS 560:2-202(a) is fifty per cent of it.

Length of marriage or relationshipMarital-property portion (HRS 560:2-203(b))Elective share as a share of the augmented estate
Less than 1 year3%1.5%
1 year but less than 26%3%
2 years but less than 312%6%
3 years but less than 418%9%
4 years but less than 524%12%
5 years but less than 630%15%
6 years but less than 736%18%
7 years but less than 842%21%
8 years but less than 954%27%
9 years but less than 1060%30%
10 years but less than 1168%34%
11 years but less than 1276%38%
12 years but less than 1384%42%
13 years but less than 1492%46%
14 years but less than 1596%48%
15 years or more100%50%

The third column is our arithmetic, half of the second. The statute prints only the second. The schedule jumps from 42 percent to 54 percent between the seventh and eighth years; that is how Act 158 enacted it, and the compiled section prints the same figures.

Take a ten-year marriage and an augmented estate of $1,000,000. The marital-property portion is 68 percent, or $680,000, and the elective share is half of that, $340,000. That figure is a target, not a check written on top of everything else. The next two sections explain what counts toward it.

The supplemental amount sets a $90,000 floor

HRS 560:2-202(b) adds a supplemental elective-share amount for a survivor with little property. It adds up three things: the survivor's own property and nonprobate transfers under HRS 560:2-207, what the survivor takes from the probate estate and the decedent's nonprobate transfers under HRS 560:2-209(a)(1), and the part of the elective share paid by others under HRS 560:2-209(c) and (d). If that sum is under $90,000, the supplemental amount is $90,000 minus the sum. It comes from the net probate estate and then from recipients of the decedent's nonprobate transfers, in the same order as the elective share.

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What Goes Into The Augmented Estate

The elective share is never a fraction of the probate estate alone. HRS 560:2-203(a) builds the augmented estate from four pools, wherever the property sits and whatever form it takes.

  1. The net probate estate. HRS 560:2-204 starts with the probate estate and subtracts funeral and administration expenses, the homestead allowance, family allowances, exempt property and enforceable claims.
  2. The decedent's nonprobate transfers to others. HRS 560:2-205 pulls in property that passed outside probate to someone other than the survivor, in three groups described below.
  3. The decedent's nonprobate transfers to the survivor. HRS 560:2-206 counts joint tenancy, survivorship accounts and similar property that passed to the survivor at the death. Federal Social Security benefits are left out.
  4. The survivor's own property and nonprobate transfers. HRS 560:2-207 counts what the survivor owned at the death, including property that passed to the survivor because of the death, reduced by enforceable claims against the survivor. The homestead allowance, family allowance, exempt property and Social Security payments are left out.

Section 560:2-205 is the reach-back. It has three groups:

  • Property the decedent owned or controlled at death that passed outside probate to someone other than the estate or the survivor. That covers a presently exercisable general power of appointment, the decedent's share of joint tenancy property, the decedent's ownership interest in POD, TOD and survivorship accounts, and life insurance the decedent owned.
  • Transfers during the marriage where the decedent kept something back. An irrevocable transfer where the decedent kept the right to possession, enjoyment or income, and any transfer where the decedent kept a power over income or property that could benefit the decedent, the estate or their creditors. A revocable trust counts either way, because HRS 560:2-201 treats a power to revoke as a presently exercisable general power of appointment.
  • Transfers in the two years before the death, during the marriage. Rights or powers given up in that window that would otherwise have counted, life insurance transferred in that window, and gifts to any one person above $32,000 in either of the two years.

HRS 560:2-208 takes out property the decedent sold for full value, and any transfer the survivor joined in or consented to in writing. It also takes out property held in a trust someone else created and funded, and gifts or inheritances either spouse received from a third party during the marriage, as long as the property was kept separate from the rest.

One more rule from the TOD deed statute. HRS 527-15 makes property passed by a Hawaii transfer on death deed answer for claims and for a statutory allowance to a surviving spouse or child when the probate estate falls short. A proceeding to reach it has to start within eighteen months of the death.

Where The Money Comes From

HRS 560:2-209 decides who pays, in a set order.

  1. What the survivor already has counts first. Property passing to the survivor by will or intestacy, nonprobate transfers to the survivor under 560:2-206, and the marital-property portion of the survivor's own property under 560:2-207 are applied before anyone else pays. Subsection (b) computes that last figure with the same 560:2-203(b) percentage.
  2. Then the probate estate and most nonprobate transfers to others. Probate assets not passing to the survivor, and nonprobate transfers under 560:2-205(1), (2) and (3)(B), pay any unsatisfied balance, split among the recipients in proportion to the value of what they received.
  3. Then the rest of the nonprobate transfers. The remaining transfers to others, mainly the two-year gifts, pay what is still owed, again in proportion.

HRS 560:2-210 makes only the original recipients of the decedent's nonprobate transfers liable, plus people they gave the property to, and only to the extent those people still have the property or its proceeds. A recipient can give back the proportional part or pay its value.

A bank, insurer or other payor that pays a named beneficiary in good faith is protected under HRS 560:2-214 until it receives written notice of an intention to file for the elective share, or that a petition has been filed. The notice goes by registered or certified mail, return receipt requested, or by service like a summons.

Nine Months, Six Months, And A Cutoff

HRS 560:2-211(a) sets the deadline. The survivor files a petition for the elective share in the court, and mails or delivers it to the personal representative if there is one, within nine months after the death or within six months after the will is probated, whichever limitation expires later.

The second sentence of that subsection carries a cutoff that matters more than the deadline. If the petition is filed more than nine months after the death, the decedent's nonprobate transfers to others drop out of the augmented estate. The survivor can still file under the six-month limb, but the joint accounts, beneficiary designations and trust property that passed to others no longer count.

HRS 560:2-211(b) offers one way to keep them in. Within nine months after the death, the survivor can petition for an extension and give notice to everyone interested in the nonprobate transfers. The court can extend the time for cause, and a petition filed within the extension keeps those transfers in the calculation.

The rest of the proceeding runs this way:

  • The survivor gives notice of the hearing to people interested in the estate and to recipients whose interests the elective share would reduce (HRS 560:2-211(c)).
  • Hawaii Probate Rule 90(c) requires the petition to be served on all interested persons, including anyone who received property that may count in the augmented estate. Each recipient has 30 days from service to file and serve a statement of property received from the decedent within two years of the death, with its value if known and the date received.
  • The survivor can withdraw the demand at any time before the court's final determination (HRS 560:2-211(d)).
  • After notice and a hearing, the court fixes the elective-share and supplemental amounts and orders payment, even against property the personal representative never held (HRS 560:2-211(e)).
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The Right Is Personal To The Survivor

HRS 560:2-212(a) lets only a survivor who is living when the petition is filed make the election. If the survivor dies first, the right dies too, and the survivor's own heirs cannot file it.

A conservator, guardian or agent under a power of attorney can elect on the survivor's behalf. When the election is made for a survivor who is an incapacitated person, HRS 560:2-212(b) places the part paid by the probate estate and by recipients of nonprobate transfers into a custodial trust under HRS chapter 554B. An election by an agent under a durable power of attorney is presumed to be for an incapacitated survivor. The trustee spends for the survivor's health, education, maintenance and support, and when the survivor dies, what is left goes under the residuary clause of the will of the person who died first, or to that person's heirs. HRS 560:2-405(b) lets the personal representative add unpaid allowances to that trust.

The Three Allowances Sit On Top

Each allowance says it is added to what the survivor takes by will, by intestate succession or by elective share, and none of them depends on electing.

AllowanceAmountPriority against claimsStatute
Homestead allowance$30,000Exempt from and ahead of all claims against the estateHRS 560:2-402
Exempt propertyUp to $20,000 above security interests, in household furniture, automobiles, furnishings, appliances and personal effectsAhead of all claims; a cash make-up gives way to the homestead and family allowancesHRS 560:2-403
Family allowanceA reasonable amount for maintenance during administrationAhead of all claims except the homestead allowanceHRS 560:2-404 and 560:2-405

Act 158 of 2023 doubled all three figures: the homestead allowance rose from $15,000, exempt property from $10,000, and the personal representative's family allowance limits from $18,000 and $1,500 a month.

Homestead allowance

HRS 560:2-402 pays $30,000 to the surviving spouse or reciprocal beneficiary. With no survivor, each minor child and each dependent child takes $30,000 divided by the number of those children. The name misleads: Hawaii's homestead allowance is a dollar figure, not a right to occupy the family home.

Exempt property

HRS 560:2-403 gives the survivor up to $20,000 of value, above any security interest, in household furniture, automobiles, furnishings, appliances and personal effects. If there is not that much in those categories, the survivor takes other estate assets to make up the difference. With no survivor, the children share the same value.

Family allowance

HRS 560:2-404 gives the survivor and the minor children the person who died was obligated to support, plus children the person was in fact supporting, a reasonable allowance in money for their maintenance during administration. It cannot run longer than one year if the estate cannot pay its allowed claims. It can be paid as a lump sum or in installments, and the death of a person entitled to it ends the right to unpaid amounts.

HRS 560:2-405(a) lets the personal representative set the family allowance at up to $36,000 in a lump sum, or up to $3,000 a month for one year, and pay it without a court order. Hawaii Probate Rule 90(b) still sends any family allowance over $18,000 in total to a court order after a petition with notice to creditors, a figure the 2023 act left behind. The two disagree, and which one a circuit follows is a question for the circuit court or a licensed Hawaii attorney.

Choosing the property

Under HRS 560:2-405(a), the survivor selects the property taken as homestead allowance and exempt property. Property left by a specific gift in the will is not used if the estate is otherwise sufficient. The personal representative can make the selection if the survivor does not act within a reasonable time, and can sign a deed of distribution to put title in the survivor's name. Hawaii Probate Rule 90(a) has the personal representative distribute homestead and exempt property on a claim, without a court order, against a signed receipt. Anyone aggrieved by a selection or determination can petition the court.

The allowances outrank almost every debt, which is why they come up in the Hawaii order of payment before creditors see a dollar.

If There Is No Will

With no will, the survivor does not need an election to take a share. HRS 560:2-102 gives the surviving spouse or reciprocal beneficiary the entire intestate estate when no descendant and no parent of the person who died survives, or when every surviving descendant is also the survivor's and the survivor has no other descendants. Otherwise the survivor takes a first-dollar amount plus a fraction of the rest, set by which relatives survive. Those amounts, and who takes the rest, are laid out in the intestate share with no will.

The three allowances apply here too, on top of the intestate share. HRS 560:2-202 does not limit the election to a will estate, but the arithmetic generally leaves little for an election to add unless the augmented estate includes large nonprobate transfers to others, because the survivor's intestate share already counts toward the elective share under HRS 560:2-209(a)(1).

A Survivor Who Arrived After The Will Was Signed

HRS 560:2-301 protects a spouse who married the testator, or a reciprocal beneficiary who entered the relationship, after the will was signed. The survivor receives no less than the intestate share of the part of the estate that does not go to the testator's children from before the relationship (or their descendants). The protection does not apply where the will was made in contemplation of the marriage or relationship, where the will says it survives a later marriage or relationship, or where the testator provided for the survivor outside the will in place of a gift under it.

For how a Hawaii will is made and when it can be changed, see what a spouse can claim against the will alongside the signing rules.

Waiving These Rights By Agreement

HRS 560:2-213(a) lets the right of election and the rights to homestead allowance, exempt property and family allowance be waived, wholly or partly, before or after the marriage, by a written contract, agreement or waiver the survivor signed.

Subsection (b) makes a waiver unenforceable if the survivor proves either of two things. The first is that the survivor did not sign it voluntarily. The second has four parts that must all be true: the waiver was unconscionable when signed, the survivor did not get fair and reasonable disclosure of the decedent's property and financial obligations, did not voluntarily and expressly waive that disclosure in writing, and did not have and could not reasonably have had adequate knowledge of it. Under subsection (c), unconscionability is for the court to decide as a matter of law.

Subsection (d) reads a waiver of "all rights," or a complete property settlement made after or in anticipation of separation or divorce, as a waiver of the elective share and all three allowances, plus a renunciation of intestate shares and of gifts under any earlier will, unless the document says otherwise.

A Survivor Of A Non-Hawaii Domiciliary

The elective share and allowances follow the domicile of the person who died. HRS 560:2-202(d) says the right of a survivor of someone domiciled outside Hawaii to take an elective share in Hawaii property is governed by the law of that person's domicile. HRS 560:2-401 applies the same rule to the three allowances. So the elective share in a Hawaii condominium owned by someone domiciled in California is generally governed by California law.

Where These Rights Surface In A Hawaii Estate

Each item below states what the statutes provide. None of it is a recommendation about a particular estate.

  • Nothing arrives automatically. The elective share is a petition under HRS 560:2-211, and the allowances are selected and determined under HRS 560:2-405. A survivor who files nothing and selects nothing receives what the will or the intestate rules give.
  • The nine months run from the death, not from the appointment. Opening the estate late does not restart them, and the nonprobate cutoff in HRS 560:2-211(a) runs from the death no matter which limb the petition uses.
  • Much of a Hawaii estate never passes under the will. Joint tenancy, payable-on-death accounts, beneficiary designations, trusts and TOD deeds all move outside probate, and HRS 560:2-205 counts many of them anyway.
  • Dates before June 29, 2023 need a second look. Act 158 took effect on approval that day, and section 49 leaves rights that matured before it alone.
  • Inherited property has its own tax rules. For the income-tax side, see the tax basis of what you inherit.

When To Talk To A Hawaii Lawyer

This page cannot say whether any one survivor should elect, and it does not try to. These are the situations in which the statutes above leave the most turning on facts, and in which a licensed Hawaii attorney is the person to consult:

  • the person who died moved property into a trust, joint accounts or beneficiary designations, or made gifts over $32,000 to one person in the two years before the death
  • the nine-month cutoff in HRS 560:2-211(a) is close, or an extension under subsection (b) is needed
  • the couple signed a prenuptial or postnuptial agreement, or a property settlement during a separation
  • the survivor is incapacitated, so the election runs through a conservator, guardian or agent and a custodial trust
  • the survivor claims as a reciprocal beneficiary or civil union partner and the certificate is missing, or a termination is in question
  • the death came before June 29, 2023, so the pre-2023 figures may apply
  • the person who died lived in another state but owned Hawaii real property
  • the family allowance will exceed $18,000 and HPR Rule 90(b) and HRS 560:2-405(a) point different ways

This page organizes the statutes and the questions worth asking. Confirm anything that decides a particular estate with the circuit court handling it or with a licensed Hawaii attorney.

Frequently Asked Questions

Can a Hawaii will disinherit a surviving spouse or reciprocal beneficiary?

Not completely. HRS 560:2-202(a) gives the surviving spouse or reciprocal beneficiary of a person who died domiciled in Hawaii a right to elect fifty per cent of the marital-property portion of the augmented estate, whatever the will says. The right has to be exercised by petition under HRS 560:2-211, and a survivor who files nothing takes only what the will gives. The homestead allowance, exempt property and family allowance are separate claims that sit on top of any share.

How much is the Hawaii elective share?

Fifty per cent of the marital-property portion of the augmented estate under HRS 560:2-202(a). HRS 560:2-203(b) sets the marital-property portion by the length of the marriage or reciprocal beneficiary relationship, from 3 percent of the augmented estate under one year to 100 percent at fifteen years or more. So the share works out to 1.5 percent of the augmented estate for a relationship under one year, 15 percent at five years, 34 percent at ten years and 50 percent at fifteen years or more. A supplemental amount under HRS 560:2-202(b) tops the survivor up to $90,000.

Is the Hawaii supplemental elective share still $50,000?

No. Section 16 of Act 158 of the 2023 session struck $50,000 from HRS 560:2-202(b) and wrote in $90,000. The same act replaced the old table that set the elective share at 3 to 50 percent of the whole augmented estate with the current rule of fifty per cent of a marital-property portion. The act was approved on June 29, 2023 and took effect on approval. Section 49 leaves rights that matured before that date alone, so a death before it needs a lawyer's check on which version applies.

What is the deadline to claim the Hawaii elective share?

HRS 560:2-211(a) requires a petition filed in the court, and mailed or delivered to the personal representative if there is one, within nine months after the death or within six months after the will is probated, whichever limitation expires later. A petition filed more than nine months after the death loses the nonprobate transfers to others from the calculation. The survivor can ask for more time under HRS 560:2-211(b), but only by petitioning within the nine months and giving notice to the people who received those transfers.

What is the Hawaii homestead allowance?

HRS 560:2-402 gives a surviving spouse or reciprocal beneficiary a homestead allowance of $30,000. It is exempt from and has priority over all claims against the estate, and it is added to anything the survivor takes by will, by intestate succession or by elective share. It is a dollar entitlement, not a right to stay in the house. Act 158 of 2023 raised it from $15,000.

Does a reciprocal beneficiary have the same rights as a spouse in Hawaii?

Yes. Every section in HRS chapter 560 part 2 that sets a survivor's elective share, homestead allowance, exempt property and family allowance names the surviving spouse or reciprocal beneficiary together. HRS 560:2-201 defines a reciprocal beneficiary as an adult party to a relationship registered under HRS chapter 572C with a certificate that has not been terminated. A partner in a civil union holds the rights of a spouse under HRS 572B-9.

Can a prenuptial agreement waive Hawaii spousal rights?

Yes, wholly or partly, before or after the marriage. HRS 560:2-213(a) lets the right of election and the rights to homestead allowance, exempt property and family allowance be waived by a written contract, agreement or waiver the survivor signed. Subsection (b) makes a waiver unenforceable where the survivor proves it was not signed voluntarily, or that it was unconscionable when signed and the survivor lacked fair disclosure of the decedent's property and debts, never waived that disclosure in writing, and had no adequate knowledge of it.

Sources:

It is not legal advice.

Information current as of September 24, 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 Hawaii can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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