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Idaho Surviving Spouse Rights
Pillar GuideIdaho21 min read

Idaho Surviving Spouse Rights

Surviving spouses in Idaho receive homestead allowance, exempt property, and elective share of community property.

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.

Idaho protects a surviving spouse through ownership first. Under Idaho's community property rules, the spouse already owns half of everything the couple earned during the marriage, and no will can give that half away. On top of that ownership, Idaho adds a narrow elective share that reaches only quasi-community property, plus a $50,000 homestead allowance and $10,000 of exempt property that the spouse has to apply for.

That shape surprises people who read about spouse rights in other states. Idaho has no elective share against the decedent's Idaho separate property, and no family allowance. Every rule on this page was read at the Idaho Code on the Idaho Legislature's site on September 24, 2026, and each section is linked. The table sums it up, and the sections below take each row in turn.

RightWhat the spouse getsAutomatic?Statute
Survivor's half of the community propertyKeeps it. It was the spouse's all along.Yes15-3-101
Decedent's half of the community, with no willPasses to the spouseYes, by intestacy15-2-102(b)
Elective shareOne half of the augmented quasi-community property estateNo. Petition required.15-2-203, 15-2-205
Homestead allowance$50,000No. Must be applied for.15-2-402, 15-2-405
Exempt propertyUp to $10,000 of tangible personal propertyNo. Must be applied for.15-2-403, 15-2-405
Omitted spouse shareThe intestate share, if the marriage came after the willApplies unless the will or a transfer shows otherwise15-2-301
Surviving-spouse summary administrationA decree passing the estate to the spouse, with no dollar capNo. Petition required.15-3-1205

Start With What The Spouse Already Owns

Before asking what a spouse can claim, sort out what the spouse already holds. Idaho splits a married couple's property into community property (most things acquired during the marriage, wages included) and separate property (what each spouse owned before the marriage or received by gift or inheritance). Idaho community property walks through the sorting step by step.

Idaho Code 15-3-101 decides what a will can reach. On the death of a husband or wife, "the decedent's share of their community property devolves to the persons to whom it is devised by his last will, or in the absence of testamentary disposition, to the surviving spouse." The decedent's share is one half. The other half belongs to the survivor and never enters the will at all.

With no will, Idaho Code 15-2-102 treats the two kinds of property differently:

  • Community property. Subsection (b) sends "the one-half (1/2) of community property which belongs to the decedent" to the surviving spouse. The spouse ends up with all of it, whether or not there are children.
  • Separate property. Subsection (a) gives the spouse the entire separate estate if no issue or parent survives, and one half if a parent or any issue survives.

So for a couple whose home, accounts and cars all came from wages, a spouse with no will in the picture keeps everything. The fights start when a will leaves the decedent's half elsewhere, or when the couple built their savings in another state. Idaho intestate succession covers who shares the separate estate.

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The Elective Share Reaches Quasi-Community Property Only

Here is where Idaho parts ways with most states. Many states let a surviving spouse elect a fraction of an augmented estate drawn from the decedent's property at large. An Idaho spouse's elective right is confined to one category of property.

What quasi-community property is

Idaho Code 15-2-201(b) defines it as all personal property wherever situated, and all real property in Idaho, that the decedent acquired "while domiciled elsewhere and which would have been the community property of the decedent and the surviving spouse had the decedent been domiciled in this state at the time of its acquisition." Property taken in exchange for it counts too. Real property in another state counts only if that state lets Idaho law govern its descent.

Picture a couple who spent thirty years in a separate property state and retired to Coeur d'Alene. The 401(k) and brokerage account built from the husband's wages in that state were his alone under its law. Had the couple lived in Idaho while he earned those wages, they would have been community property. That makes them quasi-community property once he dies domiciled in Idaho.

Subsection (a) says that at the death of a married person domiciled in Idaho, one half of the quasi-community property "shall belong to the surviving spouse" and the other half follows the will or, if not devised, goes to the spouse. Subsection (c) makes all of it subject to the decedent's debts.

The spouse has to elect it

Idaho Code 15-2-203(a), last amended in 2016, makes the spouse's right "elective" and limits it to "one-half (1/2) of the total augmented quasi-community property estate." Three rules shape the number:

  • The spouse's own receipts count. The augmented estate includes property the spouse received from the decedent and still owns at the death, and property that passed to the spouse through joint ownership. Subsection (c) presumes that property the spouse owns came from the decedent unless the spouse proves another source. Social Security benefits are excluded.
  • Some lifetime transfers come back in. Idaho Code 15-2-202 lets the spouse recover quasi-community property the decedent gave away without adequate consideration and without the spouse's consent, if the decedent kept the income or use, kept a power to revoke or consume it, held it with a right of survivorship, or gave more than $10,000 or the federal gift tax annual exclusion, whichever is greater, to one person in either of the two years before death.
  • The share bears its part of the costs. Subsection (b) reduces the elective share by "an allocable portion of general administration expenses, homestead allowance, exempt property and enforceable claims."

A worked example shows how these fit. Say the retired husband above left $600,000 of quasi-community property, made no lifetime transfers, and signed a will leaving everything to his children from a first marriage. The augmented quasi-community property estate is $600,000, and the spouse's elective share is $300,000 before the subsection (b) reductions. If the will had left her $100,000 of that property, Idaho Code 15-2-207(a) applies what passes to her first, and the other beneficiaries contribute the remaining $200,000 in proportion to their shares.

What sits outside it

Everything that is not quasi-community property:

  • Idaho separate property. A farm the husband inherited from his parents, or a cabin he owned before the wedding, is out of reach of the election. A will can leave it to anyone.
  • Community property. The spouse already owns half, and the will controls the other half.

That is the trap in template spouse-rights pages. They describe an elective share against the whole estate, which does not exist under Idaho law. A spouse disinherited from a large Idaho separate estate has no elective share to file for.

Electing does not cost the spouse the will's gifts

Idaho Code 15-2-206(a) says an election "does not affect the share of the surviving spouse under the provisions of the decedent's will or intestate succession" unless the spouse expressly renounces those provisions in the petition. What the spouse keeps under the will is counted toward the elective share under 15-2-207(a), so the election tops the spouse up rather than doubling the gift.

The Deadline To Petition

Idaho Code 15-2-205(a) sets one window. The surviving spouse files a petition for the elective share in the court and mails or delivers it to the personal representative "within nine (9) months after the death of the decedent or six (6) months after the date of filing of the petition for probate, whichever is later."

Two things about that deadline catch families:

  1. The later date wins. If a death happened on January 10, 2026 and nobody filed for probate until August 1, 2026, the nine-month date is October 10, 2026, and the six-month date is February 1, 2027. The spouse has until February 1, 2027.
  2. Extensions must be asked for in time. The court may extend the time for cause shown, but only on a request the spouse makes "before the time for election has expired."

The rest of the section sets the procedure. The spouse gives notice of the hearing to interested persons and to anyone whose share the election would reduce (subsection (b)), may withdraw the demand before the court's final determination (subsection (c)), and the court orders payment after the hearing (subsection (d)). The petition goes to the district court handling the estate, heard in the county's magistrate division. Idaho probate courts by county lists where each one sits.

Only the spouse can elect. Idaho Code 15-2-204 says the right "may be exercised only during his lifetime by him." If the spouse is a protected person, only the court handling the protective proceeding can order the election, and only after finding it necessary for the spouse's support. The right dies with the spouse.

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Homestead Allowance And Exempt Property

Two allowances sit on top of the community half and any elective share. The $50,000 homestead allowance and $10,000 exempt property have their own page with every figure and the full application process. The short version:

  • Homestead allowance: $50,000. Idaho Code 15-2-402 gives the surviving spouse a flat $50,000 that "is exempt from and has priority over all claims against the estate." It is a right to claim the sum, and it gives the spouse no ownership right in the house itself.
  • Exempt property: up to $10,000. Idaho Code 15-2-403 adds tangible personal property worth up to $10,000 above any security interests, "including, but not limited to, household furniture, automobiles, furnishings, appliances, family heirlooms and personal effects."
  • Both are on top of other shares. Each statute says the allowance is in addition to what passes to the spouse by will, intestacy or elective share, unless the will provides otherwise.

Both must be applied for, on the creditor clock

Idaho Code 15-2-405 says the homestead allowance and exempt property "are not mandatory or automatic, but rather must be applied for." The time to apply follows the creditor-claim rules in Idaho Code 15-3-801 and Idaho Code 15-3-803: four months after the first published notice to creditors, and three years after the death at the outside. The personal representative does not have to tell the spouse about the right.

The allowances also yield to reasonable administration costs. 15-2-405 says they "do not take precedence over reasonable administrative costs and expenses of the estate."

A will can cut them off

Since 2008, Idaho Code 15-2-406 lets a will eliminate or limit the homestead allowance and exempt property for a surviving spouse. It cannot tie that limit to whether the estate faces a Medicaid estate recovery claim. Idaho Code 15-2-206(b) adds a second limit: if the will clearly gives the spouse something in place of these rights, the spouse must renounce that gift to claim the allowances.

Idaho has no family allowance. The old one was repealed by 2008 Idaho Session Laws chapter 182, and Part 4 of Title 15 Chapter 2 now runs 15-2-401, -402, -403, -405 and -406 with no 15-2-404.

Married After The Will Was Signed

A will written before the marriage often names no spouse at all. Idaho Code 15-2-301(a) covers that case: a spouse "who married the testator after the execution of the will" receives "the same share of the estate he would have received if the decedent left no will." In Idaho that means the decedent's half of the community property plus the 15-2-102(a) fraction of the separate property.

Two exceptions defeat the claim:

  • The will shows the omission was intentional. A line such as "I leave nothing to any future spouse" does it.
  • The testator provided for the spouse outside the will and meant it to replace a gift under the will, as shown by the testator's statements, the size of the transfer or other evidence.

Subsection (b) takes the share from the will's gifts in the abatement order of Idaho Code 15-3-902: property the will does not dispose of first, then the residue, then general gifts, then specific gifts. The rule applies only to a marriage that came after the will. A spouse who was married to the testator when the will was signed and simply got little falls back on the allowances, plus the elective share if there is quasi-community property, and cannot use 15-2-301. Idaho will requirements covers updating a will after a marriage.

When The Spouse Inherits Everything

Many married estates end with the spouse as the only taker. Idaho Code 15-3-1205 gives that estate a shortcut with no dollar cap. The spouse files a verified petition showing the marriage and that the spouse is the sole devisee or heir, attaches the original will if there is one, and gives notice of a hearing. The resulting decree "shall thereafter have the same effect as a formal decree approving or determining distribution." The spouse or the attorney can appear by phone on motion, or file affidavits showing notice was given and no objection came in.

The cost sits in subsection (c): the spouse "shall assume and be liable for any and all indebtedness that might be a claim against the estate of the decedent and there will be no administration of the estate." This route puts the decedent's debts on the spouse personally, which is why the size of the credit card balances, medical bills and any Medicaid recovery claim bears on whether it fits a given estate. The spouse-only summary administration sits beside the small estate affidavit and the other short routes.

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The Spouse's Place In Line To Serve

Idaho Code 15-3-203(a) sets the order of priority for appointment as personal representative. The person named in a probated will comes first. Next comes a surviving spouse who is also a devisee, then other devisees, then the surviving spouse, then other heirs. Creditors may seek appointment 45 days after the death. A spouse with priority can nominate someone else to serve under subsection (c). Idaho executor duties covers the job once appointed, and the Idaho probate guide covers opening the case.

Who Counts As A Surviving Spouse

The rights above belong only to a legal surviving spouse, and three statutes draw the line.

Divorce and annulment. Idaho Code 15-2-802(a) says a person divorced from the decedent, or whose marriage was annulled, is not a surviving spouse unless they remarried each other. A decree of separation that does not end the marriage is not a divorce. Subsection (b) also excludes, for Parts 1 through 4 and for appointment priority, a person who was party to "a valid proceeding concluded by an order purporting to terminate all marital property rights."

The 120-hour rule. Idaho Code 15-2-104 treats a spouse who fails to survive the decedent by 120 hours as having died first, for the homestead allowance, exempt property and intestate succession. When the order of deaths cannot be established, the spouse is treated as not surviving.

Revocation by divorce. Idaho Code 15-2-508 revokes, on a divorce or annulment after the will was signed, every gift in the will to the former spouse, any power of appointment given to them, and any nomination of them as executor, trustee, conservator or guardian, "unless the will expressly provides otherwise." The revoked gifts pass as if the former spouse died first, and they revive if the testator remarries that same person. The section speaks only to wills. It does not mention a life insurance beneficiary form or a retirement plan designation, which are governed by their own terms and rules. For community property with right of survivorship, Idaho Code 15-6-402 turns a divorced couple's land into a tenancy in common unless the divorce court orders otherwise.

A spouse who kills the decedent loses these rights too. Idaho Code 15-2-803(c) treats the slayer as having died first as to property acquired "by statutory right as surviving spouse."

Signed Waivers And Prenuptial Agreements

Idaho Code 15-2-208 lets a spouse waive the elective share, the homestead allowance and exempt property, in whole or in part, before or after the marriage. The waiver must be a written contract, agreement or waiver "signed by the party waiving after fair disclosure."

The last sentence of the section reaches further than many people expect. Unless the document says otherwise, a waiver of "all rights" in the other spouse's property, or a complete property settlement signed in anticipation of separation or divorce, waives the elective share and both allowances. It also renounces what each spouse would take from the other by intestacy or under any will signed before the waiver. That reach can matter for a couple who signed a settlement and later reconciled.

The Questions That Decide A Spouse's Position

The rules above turn on a handful of facts, which commonly come up in this order:

  1. How the property is classified. Each asset is community, separate or quasi-community. Where the couple lived when an asset was acquired decides the quasi-community question.
  2. What the will says. Whether it was signed before the marriage, whether it gives the spouse something in place of the allowances, and whether it limits them under 15-2-406.
  3. The elective share date. The later of nine months after the death and six months after the probate petition. Under 15-2-205, an extension is available only on a request made before that date passes.
  4. The allowance window. The $50,000 homestead allowance and up to $10,000 of exempt property are claimed within the creditor-claim period.
  5. Any signed waiver. A prenuptial agreement, postnuptial agreement or property settlement can remove these rights under 15-2-208.
  6. The debts, if the spouse takes everything. The spouse-only decree under 15-3-1205 is faster and carries personal liability for the decedent's debts.

This page cannot apply those rules to a particular estate. When quasi-community property is large, lifetime gifts may need to be pulled back, or a waiver's wording is in doubt, a licensed Idaho probate attorney can review the specific documents, and the 15-2-205 date makes an early conversation matter.

Frequently Asked Questions

Can an Idaho will disinherit a surviving spouse?

Only partly. A will cannot touch the surviving spouse's own half of the community property, because Idaho Code 15-3-101 lets a will dispose of the decedent's share of the community and nothing more. A will can leave the decedent's half of the community and all of the decedent's separate property to someone else. The spouse can still petition for an elective share of quasi-community property under Idaho Code 15-2-203 and apply for the homestead allowance and exempt property, unless a signed waiver under Idaho Code 15-2-208 gave those up.

Does Idaho have an elective share against the whole estate?

No. Idaho Code 15-2-203 limits the surviving spouse's elective right to one half of the augmented quasi-community property estate. Quasi-community property is property the decedent acquired while living in another state that would have been community property had the couple lived in Idaho. Idaho separate property, such as an inheritance, sits outside the elective share.

What is the deadline to claim the Idaho elective share?

Idaho Code 15-2-205(a) requires the surviving spouse to file a petition in the court and mail or deliver it to the personal representative within nine months after the death or six months after the petition for probate was filed, whichever is later. The court may extend the time for cause, but only if the spouse asks before the time runs out.

How much is the Idaho homestead allowance?

Idaho Code 15-2-402 sets the homestead allowance at $50,000 for the surviving spouse. Idaho Code 15-2-403 adds up to $10,000 of exempt tangible personal property, such as furniture, cars and personal effects, above any security interests. Neither is automatic. Idaho Code 15-2-405 says both must be applied for, on the same schedule as creditor claims.

What does an Idaho spouse get if the will was signed before the marriage?

Idaho Code 15-2-301 gives a spouse who married the testator after the will was signed the share they would have received with no will at all. That share is the decedent's half of the community property plus a fraction of the separate property under Idaho Code 15-2-102. The rule does not apply if the will shows the omission was intentional, or if the testator provided for the spouse outside the will in place of a gift under it.

Does divorce cancel what an Idaho will leaves to a former spouse?

Yes, for the will. Idaho Code 15-2-508 revokes gifts to a former spouse and any nomination of the former spouse as executor, trustee, conservator or guardian when the marriage ends in divorce or annulment after the will is signed, unless the will says otherwise. A decree of separation that leaves the couple married does not count.

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 Idaho can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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