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Montana Elective Share
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Montana Elective Share

The Montana elective share gives a surviving spouse 50% of the marital-property portion of the augmented estate, with a $75,000 floor.

By Settled Editorial

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The Montana elective share lets a surviving spouse claim 50% of the marital-property portion of the augmented estate instead of taking what the will leaves. The marital-property portion grows with the length of the marriage, from 3% in the first year to 100% at 15 years, under MCA 72-2-233(2). A spouse whose total falls short of $75,000 can claim a supplemental amount that brings it up to $75,000. The spouse must petition the district court within 9 months after the death or 6 months after the will is probated, whichever is later.

This page explains how the election works under the Montana Code Annotated 2025. It is a narrow page on one right; the full set of spousal protections, including the three allowances that sit on top of the elective share, is in the Montana surviving spouse rights guide. Confirm your own figures with the district court holding the estate file or with a licensed Montana attorney.

Who Can Elect

MCA 72-2-232(1) gives the right to the surviving spouse of a decedent who died domiciled in Montana. If the decedent lived in another state, 72-2-232(4) says the law of that state governs any elective share in Montana property.

"Spouse" includes a common-law spouse. MCA 40-1-403 says common-law marriages are not invalidated, so a surviving partner in a valid Montana common-law marriage does not need a marriage certificate to claim the share.

The right is personal. Under 72-2-242(1) it can be exercised only by a spouse who is living when the petition is filed. A conservator, guardian or agent under a power of attorney may file on the spouse's behalf. When the election is made for an incapacitated spouse, 72-2-242(2) has the court set aside the part of the share owed from the probate estate and from nonprobate recipients and appoint a trustee to hold it for the spouse's support.

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The Marital-Property Portion Schedule

The share is not a flat fraction. MCA 72-2-233(2) multiplies the whole augmented estate by a percentage tied to the length of the marriage, and the spouse's share is half of that result.

Married to each otherMarital-property portionElective share (50% of that portion)
Less than 1 year3%1.5% of the augmented estate
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 948%24%
9 years but less than 1054%27%
10 years but less than 1160%30%
11 years but less than 1268%34%
12 years but less than 1376%38%
13 years but less than 1484%42%
14 years but less than 1592%46%
15 years or more100%50%

Read the table as written. The step from 60% to 68% at eleven years is in the statute, so do not interpolate between rows.

What the Augmented Estate Includes

The augmented estate is much wider than the probate estate. MCA 72-2-233(1) adds together four components:

  1. The decedent's net probate estate (72-2-234): the probate estate reduced by funeral and administration expenses, the homestead allowance, family allowances, exempt property and enforceable claims.
  2. The decedent's nonprobate transfers to others (72-2-235), such as joint tenancy, POD and TOD accounts that passed to someone other than the spouse, and certain transfers the decedent made during the marriage.
  3. The decedent's nonprobate transfers to the surviving spouse (72-2-236), including joint tenancy and survivorship accounts that passed to the spouse. Social Security is excluded.
  4. The surviving spouse's own property and nonprobate transfers to others (72-2-237).

The fourth item surprises many families. The spouse's own assets count in the total, and 72-2-239(1) applies what the spouse already receives, plus the marital-property portion of the spouse's own property, toward the share first. Only the unsatisfied balance is collected from the probate estate and then from other nonprobate recipients, in proportion to what each received, under 72-2-239(3) and (4).

A Worked Illustration

Suppose a couple was married 12 years, so the marital-property portion is 76%. The four components of the augmented estate total $600,000.

  • Marital-property portion: $600,000 x 76% = $456,000
  • Elective-share amount: 50% of $456,000 = $228,000

That $228,000 is not a check the heirs must write in full. If the spouse already receives $80,000 through a joint account, and the marital-property portion of the spouse's own savings is $50,000, both are credited first under 72-2-239(1). The unpaid balance of $98,000 is then charged to the will's beneficiaries and other nonprobate recipients. Every figure here is for illustration only; the court computes the real numbers.

The $75,000 Supplemental Amount

MCA 72-2-232(2) sets a floor. Add up three things: the spouse's own property and nonprobate transfers to others counted under 72-2-237, what passes to the spouse by will, intestacy or nonprobate transfer, and the part of the elective share payable from others. If the sum is less than $75,000, the spouse is entitled to a supplemental elective-share amount equal to $75,000 minus that sum.

It is a top-up to $75,000, not a second $75,000. A spouse married eight months to a person with a $300,000 augmented estate has an elective-share amount of $4,500 (1.5% of $300,000). If the spouse owns little and inherits nothing, the supplemental amount raises the total to $75,000.

The Allowances Come on Top

Under 72-2-232(3), when the spouse elects, the homestead allowance, exempt property and family allowance "are not charged against but are in addition to" the elective-share and supplemental amounts. Those are $22,500 under 72-2-412, up to $15,000 of exempt property under 72-2-413, and a reasonable family allowance under 72-2-414. The Montana exempt property guide explains the first two.

The Deadline and How to File

MCA 72-2-241(1) is the rule that ends most claims. The spouse files a petition for the elective share in the district court and mails or delivers a copy to the personal representative, if one has been appointed, within:

  • 9 months after the date of death, or
  • 6 months after the probate of the will,

whichever limitation expires later. The spouse then gives notice of the hearing to persons interested in the estate and to the recipients of the nonprobate transfers.

Two further rules sit in the same section. Under 72-2-241(2), a spouse may petition for an extension, but only within 9 months after the death, and nonprobate transfers to others drop out of the calculation if the election comes after 9 months without one. Under 72-2-241(3), the spouse may withdraw the demand at any time before the court's final determination.

To size the claim before filing, a spouse can use the probate-plus-nonprobate property list described in the Montana probate inventory guide. Under 72-3-607(6), a spouse whose election right has not expired can demand that list, and the personal representative prepares it within 90 days unless the court orders otherwise.

Waiving the Right

The right can be given up only in writing. MCA 72-2-243(2) lets a spouse affirm, modify or waive the elective share and the allowances by a written agreement signed before or after the marriage. Under 72-2-243(3), the agreement is not enforceable if the spouse proves it was involuntary, that they lacked access to independent legal representation, that a plain-language explanation was missing when no lawyer was involved, or that they did not receive adequate financial disclosure.

When to Call a Montana Attorney

The computation turns on valuing four separate components and on the order in which 72-2-239 charges them, and the 9-month extension window closes quickly. A spouse weighing an election, and a personal representative who receives a petition, both benefit from talking with a Montana probate attorney early.

Related Montana Guides

Sources:

This guide explains Montana law in general terms. It is not legal advice.

Information current as of September 27, 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 Montana can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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