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Mississippi Surviving Spouse Rights in Probate
Support GuideMississippi13 min read

Mississippi Surviving Spouse Rights in Probate

Mississippi surviving spouse rights explained. Renounce the will for a child's part capped at one-half, plus one year's support, exempt property, and homestead.

By Settled Editorial

Mississippi protects a surviving spouse in several separate ways, and none of them looks like the percentage "elective share" that many other states use. Instead, a spouse who is left too little can renounce the will and take a share of the estate as if there were no will, capped at one-half. On top of that, Mississippi sets apart one year's support, sets apart exempt property, and recognizes a right to occupy the homestead. Estates run through Chancery Court, and the personal representative reports to the county Chancery Clerk.

This guide walks through each protection, the statute behind it, and how the pieces fit together. It is general information about Mississippi estates, not legal advice.

Overview of Spousal Rights

Mississippi gives a surviving spouse four distinct protections, and they can stack:

  1. Renunciation of the will. Under Miss. Code 91-5-25 and 91-5-27, a spouse left less than an intestate share may renounce the will and take a statutory share instead, capped at one-half of the estate.
  2. One year's support. Under Miss. Code 91-7-135, the court sets apart a year's provision for the support of the spouse and the children the decedent was supporting.
  3. Exempt property. Under Miss. Code 91-7-117, appraisers set apart for the spouse the property of the decedent that was exempt from execution under Mississippi's exemption laws.
  4. Homestead. Mississippi holds an owner-occupied residence exempt from most creditors up to $75,000 in value on up to 160 acres (Miss. Code 85-3-21), and recognizes a surviving spouse's right to occupy the homestead.

Each right is separate. A spouse can receive the year's support, the exempt property, and homestead protection, and still weigh whether to take under the will, take an intestate share, or renounce it. None of these protections is the same as title, a beneficiary designation, or a payable-on-death transfer, which pass outside the estate.

One point sets Mississippi apart from states like Florida: there is no fixed-percentage elective share here. A Mississippi spouse is not entitled to a flat 30 percent of the estate. The spouse's floor comes from the renunciation right plus the family allowances, each explained below.

Renouncing the Will (Taking a Child's Share)

Mississippi's answer to disinheritance is not a percentage of the estate. It is the right to renounce the will. Under Miss. Code 91-5-25, a surviving spouse who is dissatisfied with what the will leaves may file a renunciation and instead take the share of the estate the spouse would have received had the decedent died without a will. Miss. Code 91-5-27 sets the limit: the renouncing spouse's share is capped at one-half of the estate, and it is reduced by the value of the separate property the renouncing spouse already owns.

Because the renounced share is an intestate share, it is a child's part, not a fixed fraction. If the decedent left children, the spouse shares equally with them, as the Intestate Share section below explains, subject to the one-half cap. If the decedent left no descendants, the intestate share would be the entire estate, but the renunciation cap still limits the renouncing spouse to one-half.

A practical way to think about it: the spouse compares three numbers. What the will actually leaves. What an intestate child's part would be. And the one-half cap, less the value of the spouse's own separate property. Renouncing helps only when the will leaves less than that capped intestate share. This is a fact-specific calculation, and a Mississippi attorney can run it against the real estate before the spouse commits to a renunciation. (Source: Miss. Code 91-5-25; Miss. Code 91-5-27.)

Year's Support / Allowance

Separate from the will and from renunciation, Mississippi sets apart support for the family during administration. Under Miss. Code 91-7-135, the court or chancellor sets apart out of the decedent's effects one year's provision for the comfortable support of the surviving spouse and the children who were being supported by the decedent. If the property already set apart as exempt is not enough, the court fixes the additional sum needed for one year of comfortable support. Mississippi does not cap the year's support at a fixed statutory dollar figure; the chancellor sets the sum on the facts of the estate.

Who receives it:

  • Spouse and supported children. The year's support goes to the surviving spouse together with the children the decedent was supporting.
  • No spouse. If there is no surviving spouse, the year's support is set apart for the decedent's children who were being supported by the decedent.

Two limits matter. The support runs for one year, and Mississippi case law requires that the spouse and children claiming it were actually being supported by the decedent. When more than one person shares the allowance, Miss. Code 91-7-141 governs how it is apportioned. The year's support is set apart during administration by the court, so raise it early because it is support-focused for the dependent family. (Source: Miss. Code 91-7-135; Miss. Code 91-7-141.)

Exempt Property

Mississippi also sets apart certain exempt property for the family. Under Miss. Code 91-7-117, court-appointed appraisers set apart for the surviving spouse, or for the decedent's children, the property of the decedent that was exempt from execution under Mississippi's exemption laws. There is no separate flat-dollar "exempt property allowance" figure; the set-aside follows the underlying exemption statutes rather than a fixed number of its own.

Those exemption statutes fix the amounts:

  • Tangible personal property. Under Miss. Code 85-3-1, tangible personal property selected by the debtor is exempt up to $10,000 in cumulative value. This covers household goods, wearing apparel, books, animals, crops, one firearm, one lawn mower, and similar items.
  • The residence. Under Miss. Code 85-3-21, the homestead is exempt up to $75,000 in value on up to 160 acres, covered in the Homestead section below.

The exempt property is set apart during administration and is generally protected for the family ahead of most estate claims. Taxes, valid security interests, and purchase-money liens on specific property can still apply, so check liens before treating any item as free and clear. (Source: Miss. Code 91-7-117; Miss. Code 85-3-1.)

Homestead

Mississippi does not impose a Florida-style restriction on leaving the home by will. Its homestead protection is a value- and acreage-capped creditor exemption paired with a right to stay in the home. Under Miss. Code 85-3-21, a householder who owns and occupies a residence may hold it exempt from seizure or sale under execution or attachment up to $75,000 in value, on land not exceeding 160 acres. Existing mortgages, tax liens, and other encumbrances are subtracted from the actual value when measuring against the $75,000 cap.

For a surviving spouse, two points follow. First, the homestead is generally shielded from the decedent's ordinary debts in favor of a surviving spouse and descendants. Second, Mississippi recognizes a surviving spouse's right to occupy the homestead; confirm the precise scope and any conditions under Miss. Code 91-1-23. The residence's title still passes under the will, a survivorship or transfer-on-death deed, a beneficiary designation, or intestacy, so the occupancy right and the renunciation right are analyzed alongside how title actually moves.

A valid deed of trust, a purchase-money obligation, a mechanic's or materialman's lien, and taxes are not defeated by the homestead exemption. (Source: Miss. Code 85-3-21; Miss. Code 91-1-23.)

Intestate Share

If there is no will, or if the spouse renounces the will, the spouse's share is set by Mississippi's descent statutes, and the key rule is the child's part under Miss. Code 91-1-7.

  • No descendants. If the decedent left no child and no descendant of a child, the surviving spouse takes the entire estate, real and personal, after debts.
  • Spouse and descendants. If the decedent left a child, children, or descendants of children, by this or a former marriage, the spouse takes a child's part, meaning an equal share alongside each child. The estate divides into equal shares, one for the spouse and one for each child.

So the fraction depends on the number of children:

Family situationSurviving spouseChildren
No children or descendantsEntire estateNone
One childOne-half (a child's part)One-half
Two childrenOne-third (a child's part)Two-thirds, split equally
Three childrenOne-fourth (a child's part)Three-fourths, split equally

Real and personal property follow the same path (Miss. Code 91-1-11), and a deceased child's share passes down that child's line by representation (Miss. Code 91-1-3). For the full ladder of heirs, see the Mississippi intestate succession guide. (Source: Miss. Code 91-1-7.)

Waiver and Forfeiture

Spousal protections can be limited by agreement or by conduct.

Waiver by agreement. A valid prenuptial or postnuptial agreement can waive or reshape what a spouse would otherwise take. To be enforceable, such an agreement generally must be in writing, entered voluntarily, and supported by fair disclosure of the parties' finances. Have a Mississippi attorney review any such agreement before anyone relies on it.

Forfeiture. A person who willfully causes or procures the death of another may not inherit any part of that person's estate under Mississippi's slayer rule (Miss. Code 91-1-25). Marital status also matters: only a legally surviving spouse holds these rights, so a question about a pending divorce or a disputed marriage belongs with a Mississippi attorney.

Deadlines

Mississippi runs these protections through Chancery Court during administration, and several of the exact time limits are set by the court rather than by a single fixed number in our data. Do not assume a specific deadline.

  • Renunciation of the will is made in the Chancery Court under Miss. Code 91-5-25 and 91-5-27. Confirm the exact time limit for filing the renunciation with the Chancery Clerk or a Mississippi attorney before you rely on it, because missing it can cost the spouse the renunciation right.
  • One year's support and exempt property are set apart by the court or chancellor during administration (Miss. Code 91-7-135; Miss. Code 91-7-117). Raise them early. If there is a dispute, an interested person applies to the Chancery Court.
  • Homestead occupancy is asserted as part of the estate, alongside how title to the residence passes.

Because the timing is handled during administration, the safe move is to raise each protection with the Chancery Clerk in the county of administration as soon as the estate opens.

How the Protections Fit Together

A surviving spouse in Mississippi usually works through the protections in this order:

  1. Secure the family allowances. Ask the Chancery Court to set apart the one year's support (Miss. Code 91-7-135) and the exempt property (Miss. Code 91-7-117). These are support-focused and come ahead of most estate claims.
  2. Confirm the homestead. Assert the right to occupy the residence (Miss. Code 91-1-23) and note the $75,000 creditor exemption on up to 160 acres (Miss. Code 85-3-21).
  3. Compare the will against an intestate child's part. Value what the will actually leaves next to the child's part the spouse would take under Miss. Code 91-1-7.
  4. Decide whether to renounce. If the will leaves less than the capped intestate share, consider renouncing under Miss. Code 91-5-25 and 91-5-27, remembering the one-half cap and the separate-property offset.

Run the numbers with a Mississippi attorney before renouncing, because it is a fact-specific decision that turns on the estate's value and the number of children.

Frequently Asked Questions

Does Mississippi have an elective share for a surviving spouse?

Not as a percentage. Mississippi does not give a spouse a fixed "elective share" like a flat 30 percent of the estate. Instead, a spouse left less than an intestate share may renounce the will under Miss. Code 91-5-25 and take a statutory share, capped at one-half of the estate and reduced by the value of the spouse's own separate property (Miss. Code 91-5-27).

Can my spouse disinherit me in Mississippi?

Not completely. Even if the will leaves you little, you can renounce and take a capped intestate share, and you are separately entitled to one year's support, the exempt property set-aside, and homestead protection. The exact amounts depend on the estate and the number of children.

How much is the year's support in Mississippi?

There is no fixed statutory dollar amount. Under Miss. Code 91-7-135 the chancellor sets apart one year's provision for the comfortable support of the spouse and the supported children, and fixes the sum on the facts of the estate if the exempt property already set apart is not enough.

What share does a surviving spouse get with no will?

Under Miss. Code 91-1-7, the spouse takes the entire estate if there are no descendants. If there are children, the spouse takes a child's part, an equal share alongside each child, so with two children the spouse takes one-third.

Related Guides

Sources

This guide provides general information about surviving spouse rights in Mississippi. Consult with a Mississippi 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 Mississippi can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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