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Rhode Island Surviving Spouse Rights
Support GuideRhode Island27 min read

Rhode Island Surviving Spouse Rights

Rhode Island gives a surviving spouse a life estate under § 33-25-2, a $150,000 set-off under § 33-1-6, and a chapter 33-28 elective share.

By Settled Editorial

Rhode Island gives a surviving spouse a life estate in the decedent's real estate under R.I. Gen. Laws § 33-25-2, a discretionary set-off of up to $150,000 of that real estate in fee under § 33-1-6, and an elective share under chapter 33-28. Three of those rights close six months after the fiduciary's qualification is first published.

Two features make Rhode Island unlike most states. It carries a dedicated Elective Share chapter and a live Dower and Curtesy chapter at the same time, and the two overlap rather than compete. And every one of these rights is measured on probate property, so a spouse who already holds the house by survivorship is looking at a very different calculation from a spouse who holds nothing.

What a Rhode Island Surviving Spouse Can Claim

Six protections exist across three chapters. Not one of them is a fixed percentage of a combined estate.

ProtectionWhat it givesStatuteTiming
Life estate in the real estateUse of the real estate the decedent owned in fee simple at death, for the spouse's natural life, subject to encumbrances existing at death§ 33-25-2Takes effect on death; a devise to the spouse bars it unless the spouse waives within six months of first publication
Elective shareThe § 33-1-5 life estate and § 33-1-6 allowance in individually titled real estate, plus the § 33-1-10 share of the probate personal estate§ 33-28-1Waiver and petition within six months of first publication
Set-off of real estate in feeUp to $150,000 of Rhode Island real estate in fee, over and above all encumbrances, at the court's discretion. Intestate estates only; a testate spouse reaches the same measure through the elective share§ 33-1-6Petition within six months of first publication
Family support allowanceA reasonable sum out of the probate estate for the support of the family, with no statutory dollar figure§ 33-10-3Application within six months of first publication, second period within one year
Wearing apparel and household goodsWearing apparel outright, plus furniture, household effects and other exempt personal property the court deems necessary§ 33-10-1While the estate is open
Real estate set aside where no issueA suitable portion of the real estate not needed to pay debts, held on the same terms as the chapter 33-25 life estate§ 33-10-4Only where no issue was living at the death

Look at what the table does not contain. Rhode Island writes no fixed-dollar homestead allowance and no fixed-dollar exempt-property allowance, so any page quoting a Rhode Island widow a set sum off the top of the estate is describing another state's law.

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Dower and Curtesy Are Abolished. A Life Estate Replaced Them

Section 33-25-1 abolished the right of a widow to common law or statutory dower and the right of a husband to common law or statutory curtesy. The chapter kept its old name and put a modern rule underneath it.

Section 33-25-2(a) is that rule. Whenever a person dies leaving a husband or wife surviving, the real estate the decedent owned in fee simple at death descends and passes to the surviving spouse for that spouse's natural life, subject to any encumbrances existing at death. The section adds that the decedent's liability to discharge those encumbrances is not impaired, and it makes §§ 33-1-1 and 33-1-2 subject to chapter 33-25 and to § 33-1-6.

Three boundaries decide most arguments about scope:

  • Fee simple ownership at death. Property the decedent held some lesser interest in never reaches the life estate.
  • Encumbrances existing at death survive it. A mortgage recorded before the death still binds the property the spouse occupies.
  • Lifetime conveyances recorded before death drop out. Under § 33-25-2(b), real estate the decedent conveyed away before death, with or without money changing hands, escapes the life estate if the instrument was recorded in the land evidence records of the city or town where the land sits before the decedent died. The subsection also says the opposite does not follow: a conveyance stays valid whether or not it was recorded in time.

Section 33-25-6 fixes the reach in time. Chapter 33-25 applies to dower and curtesy rights as they existed before April 17, 1978, and if that cannot apply constitutionally, the chapter is still fully effective for the estate of every person who died after April 17, 1978.

The Life Estate Beats Unsecured Creditors (§ 33-25-3)

Section 33-25-3 does two jobs in one sentence. The chapter 33-25 life estates take effect despite any provision of the decedent's will, except as provided in § 33-25-4. And they take precedence over any claims of creditors of the decedent or the decedent's estate, except claims secured by a lien or any form of encumbrance on the real estate.

Read the first half carefully. A will that leaves the surviving spouse nothing does not defeat the life estate, because the life estate takes effect despite the will. The § 33-25-4 exception bites only where the will actually gives the spouse something. Compare that with the six-month presentment rules for Rhode Island creditor claims, which govern the unsecured debts that the life estate outranks.

A Devise Bars the Life Estate Unless the Spouse Waives It (§ 33-25-4)

Where any estate, real or personal, is devised or bequeathed to a surviving spouse, that gift bars the life estate unless the spouse acts. The spouse has six months after the date of the first publication of the qualifications of the fiduciary to file, in the probate court granting probate, a written statement waiving and renouncing the devise and bequest and claiming the life estate in the decedent's real estate.

One filing step catches people out. If any of that real estate sits in a city or town other than the one where the will is probated, the waiver and claim must also be filed in the records of deeds in each city and town where the real estate is located. Rhode Island records land at the municipal level, so there is no county recorder to catch the omission.

Cash Instead of the Life Estate (§ 33-25-5)

Where a court orders real estate sold, or the property is taken under authority of law, and it appears the surviving spouse is or may be entitled to a life estate, the court with jurisdiction of the proceeding may determine the present value of the life estate and order it paid out of the proceeds in lieu of the life estate. The court acts on the spouse's own petition, after notice, and the decision is discretionary. That valuation question is the one that governs selling a house subject to a life estate.

The Elective Share Is Measured by the Intestacy Rules (Chapter 33-28)

Section 33-28-1(a) gives the surviving spouse of a decedent who dies domiciled in Rhode Island a right of election, and it defines the share by pointing at two other statutes rather than naming a fraction:

  1. The real estate limb. The life estate and allowance in an intestate's real estate titled in the name of the decedent individually at the time of the decedent's death, under §§ 33-1-5 and 33-1-6.
  2. The personal property limb. The share of the decedent's personal estate subject to probate, under § 33-1-10.

The share may be taken in kind or the spouse may take the value of it. Section 33-1-10 supplies the arithmetic on the personal side: from the surplus left after just debts, funeral charges and the expenses of settling the estate, the spouse takes $50,000 plus one half of the remainder if the decedent died without issue, or one half of the surplus with no dollar base if the decedent died leaving issue. Our guide to what a spouse takes without a will works through the same figures on the intestate side.

Two more rules travel with the section. Under § 33-28-1(b), a spouse who exercises the right of election keeps the chapter 33-10 allowances on top: they are not charged against the elective share, they are in addition to it. Under § 33-28-1(c), where the decedent died domiciled outside Rhode Island, the law of that domicile at death governs whether the spouse may elect against Rhode Island property at all.

Nothing Outside Probate Enters the Calculation

Both limbs of the share are probate-measured. Limb one reaches real estate "titled in the name of the decedent individually," and limb two reaches the personal estate "subject to probate." So these transfers never enter the arithmetic:

  • Real estate held in joint tenancy with right of survivorship, or by a married couple as tenants by the entirety.
  • Bank and brokerage accounts registered payable on death or transfer on death.
  • Life insurance, retirement accounts and annuities paid to a living named beneficiary.
  • Assets titled in a revocable trust the decedent funded during life.

Many states answer this with an augmented estate that claws lifetime transfers back in. Rhode Island wrote no such rule. That single gap decides more Rhode Island cases than the percentages do, and it cuts both ways. Our guide to how to avoid probate in Rhode Island covers which transfers land outside the estate.

The Date of Death Picks Which Version of the Statute Applies

Chapter 33-28 is recent law. P.L. 2014, ch. 260, § 4 and P.L. 2014, ch. 312, § 4 created it, both enacted July 1, 2014, and both took effect upon passage.

The chapter was then narrowed. P.L. 2018, ch. 149 and P.L. 2018, ch. 235, enacted July 2, 2018, rewrote § 33-28-1(a). The earlier text read simply "the life estate and allowance of an intestate's real estate pursuant to §§ 33-1-5 and 33-1-6, and share of an intestate's personal estate pursuant to § 33-1-10." The amendment split that into the numbered limbs above and added two limits: real estate must be "titled in the name of the decedent individually at the time of the decedent's death," and the personal estate must be "subject to probate." Both acts close with the same line: the act takes effect upon passage and applies to the estates of decedents dying on and after July 1, 2018.

So the death date selects the text. For a death on or after July 1, 2018, the individually-titled limit applies. Anyone reading a summary of the elective share written before 2018 is reading superseded text.

The Six-Month Election Deadline (§ 33-28-4)

Where any estate, real or personal, is devised or bequeathed to the surviving spouse, that gift bars the elective share unless the spouse files, within six months after the date of the first publication of the qualifications of the fiduciary, a written statement in the probate court waiving and renouncing the devise and bequest and petitioning for the elective share. The same municipal recording step applies: if any of the deceased spouse's real estate is located outside the city or town where the will is probated, the waiver and petition go into the records of deeds in each city and town where that real estate sits. The spouse then gives notice of the hearing date and place to everyone interested in the estate and to everyone whose interests the election will hurt.

Three points about that clock:

  1. It starts on first publication, not on the death. Publication follows the fiduciary's qualification, which follows the appointment, so the six months can begin well into the case. Our Rhode Island probate timeline shows where the publication date falls against the other deadlines.
  2. The extension is capped from the other end. Section 33-28-4(b) lets the spouse petition, within the same six months, for more time, and the extension cannot exceed nine months after the decedent's death. A case where publication came late leaves the extension worth little, because the ceiling counts from a date that has already passed.
  3. The election is reversible until the court rules. Section 33-28-4(c) lets the spouse withdraw the waiver and petition at any time before the probate court enters a final determination. Section 33-28-4(d) then makes the court's order enforceable in suits for contribution or payment in other Rhode Island courts and in other jurisdictions.

Who May Exercise the Right (§ 33-28-2)

Only a surviving spouse who is living when the petition is filed may elect. If the spouse does not act personally, the spouse's conservator, guardian, or agent under a power of attorney may act instead. Where the election is made for an incapacitated spouse, the probate court may authorize transfer of property in kind, or payment of its value, to that spouse's personal representative on whatever terms the court judges to be in the spouse's best interest. See our Rhode Island guardianship guide for how that authority gets established.

Waiving the Right by Agreement (§ 33-28-3)

The right of election and the chapter 33-10 allowances may be waived, wholly or partially, before or after the marriage, by a written contract, agreement or waiver signed by the surviving spouse. Rhode Island makes that writing enforceable without consideration.

A waiver fails only where the surviving spouse proves one of two things. Either the spouse did not execute the waiver voluntarily. Or the waiver was unconscionable when executed and, before signing, the spouse was not provided a fair and reasonable disclosure of the decedent's property or financial obligations, did not voluntarily and expressly waive in writing any right to disclosure beyond what was provided, and did not have and could not reasonably have had adequate knowledge of that property or those obligations. Section 33-28-3(c) makes unconscionability a question of law for the probate court or another court of competent jurisdiction.

Subsection (d) is the one that surprises separating couples. A waiver of "all rights" or equivalent language in the property or estate of a present or prospective spouse, or a complete property settlement entered into after or in anticipation of separation or divorce, waives the elective share and the chapter 33-10 allowances for both spouses. It also renounces every benefit that would otherwise pass by intestate succession or under any will executed before the waiver.

The $150,000 Set-Off of Real Estate in Fee (§ 33-1-6)

This is the only Rhode Island right that hands a surviving spouse outright ownership of real estate, and the court grants it at its discretion rather than as a matter of course.

Read its scope before relying on it. Section 33-1-6 qualifies every operative noun with the word "intestate": the probate court having jurisdiction of the estate of the intestate, real estate of the intestate, a set-off to the intestate's surviving spouse, and property not required to pay the debts of the intestate. So it is an intestate-estate provision, and a spouse of a decedent who left a will does not reach it by filing a § 33-1-6 petition. The route on a testate estate is the elective share, because § 33-28-1(a)(1) defines its real-estate limb by reference to §§ 33-1-5 and 33-1-6, which makes the § 33-28-4 waiver and petition the filing and leaves § 33-1-6 supplying only the measure. Contrast § 33-25-2, which opens "Whenever any person shall die leaving a husband or wife surviving" and so reaches testate and intestate estates alike.

Within that scope, the probate court having jurisdiction of the estate of the intestate, or the probate court of any city or town where the intestate's real estate sits if the intestate was not a Rhode Island resident, may allow and set off to the intestate's surviving spouse in fee real estate located in Rhode Island up to $150,000 in value over and above all encumbrances, if that real estate is not required for the payment of the intestate's debts. The petition must be filed within six months from the date of the first publication of notice of the qualification of the administrator.

Two mechanics matter to anyone holding a single high-value property:

  • The oversized parcel. Where the real estate is one parcel worth more than $150,000 over encumbrances, and the court finds it cannot be set off whole or by partition without unreasonable loss of value, the court may order the administrator to sell it under bond, set off $150,000 from the proceeds to the spouse, and treat any surplus as real estate for descent and distribution.
  • The recording step. Title does not pass for the purpose of a conveyance by the surviving spouse until a certified copy of the entered decree is recorded in the land evidence records of the town or city where the land sits. A spouse who wins the set-off and skips the recording cannot deliver clear title.

The set-off is in addition to the § 33-1-5 life estate, and § 33-1-10(3) confirms the point from the personal-property side: the residue is distributed without any respect to the life estate and the discretionary allowance in §§ 33-1-5 and 33-1-6.

The Chapter 33-10 Allowances Sit on Top

Chapter 33-10 carries no dollar figure anywhere in it, which is the fact most non-official write-ups get wrong. Under § 33-10-1 the wearing apparel of the surviving spouse and minor children belongs to them outright, and the court may allow the spouse whatever furniture, furnishings, household effects, supplies and other attachment-exempt personal property it deems necessary having regard to all the circumstances. Section 33-10-3 adds a reasonable allowance for the support of the family for a period not exceeding six months from the death, on an application filed within six months after the first publication of notice of the qualification of the personal representative, with a discretionary second six-month period fixable within one year of that publication.

Section 33-10-2 explains why these allowances are worth claiming early: property the court allows to the surviving spouse or family, although inventoried, is not assets in the hands of the personal representative. It leaves the pool that creditors reach. Section 33-10-4 extends the idea to land where no issue was living at the death, setting aside a suitable portion of the real estate not required to pay debts, held on the same conditions and for the same time as the chapter 33-25 life estate.

Read the chapter 33-10 allowances alongside this page. The § 33-10-3 support allowance runs on the same six-month calendar as the election, because both clocks start at the same publication.

One number needs quarantining. Section 9-26-4.1 gives a Rhode Island homeowner an automatic estate of homestead worth $500,000, arising by operation of law with no declaration, no statement in a deed and no other paperwork, exempt from attachment, levy on execution and sale for payment of debts or legacies. That protects a living owner's principal residence from that owner's creditors. It is not a sum a surviving spouse collects from a probate estate.

Marriage and Divorce Can Settle the Question Before Any Election

Two sections in chapter 33-5 change the will itself, and both should be checked before a spouse spends the six months arguing about a share.

Marriage revokes an earlier will. Under § 33-5-9, marrying revokes a will the person made before the marriage, unless the will shows it was made in contemplation of the marriage. A narrow carve-out preserves a power of appointment the will exercised where the appointed property would not have passed to the same people on intestacy. So a spouse who married the testator after the will was signed can find the whole will gone and the estate passing under chapter 33-1, with no election needed at all.

Divorce revokes gifts to the former spouse. Under § 33-5-9.1, entry of a final judgment of divorce revokes all provisions for the former spouse's benefit in a will made before the divorce, unless the will shows it was made in contemplation of the divorce. Every other provision then takes effect as though the former spouse had predeceased. A person still married at the death remains a surviving spouse, so a pending case that never reached final judgment does not trigger this section.

Four Ways a Rhode Island Spouse Ends Up With Nothing

A signed waiver. Section 33-28-3 enforces a premarital or postmarital waiver without consideration, and subsection (d) reads a broad "all rights" clause or a divorce property settlement as waiving the elective share, the allowances and any benefit under an earlier will.

Silence for six months. The § 33-25-4 life estate claim, the § 33-28-4 election, the § 33-1-6 set-off petition and the § 33-10-3 allowance application all die at the same six-month mark. None of them revives.

Killing the decedent. Section 33-1.1-2 stops a slayer, and anyone claiming through the slayer, from acquiring any property or receiving any benefit as the result of the death. Section 33-1.1-4 treats the slayer as having predeceased the decedent as to anything that would have passed by devise or legacy.

Dying before the petition is filed. Section 33-28-2(a) allows the election only for a surviving spouse who is living when the petition reaches the probate court. A spouse who dies during the six months leaves nothing for an estate to elect.

Which Filing to Make, and Where

Both waivers work the same way and run on the same clock, and the difference is what they buy. A § 33-25-4 filing waives the devise and claims the life estate in the real estate alone. A § 33-28-4 filing waives the devise and petitions for the whole elective share, which carries the life estate, the § 33-1-6 allowance and the § 33-1-10 personal-property share together. A spouse comparing the two is comparing the will's gift against the full statutory package, and that comparison needs the inventory, which the Rhode Island executor duties guide explains.

The filing goes to the probate court of the city or town where the estate is being administered. Rhode Island runs no county probate court: § 8-9-9 gives every probate court jurisdiction "in the town or city in which it is established" over the probate of wills, the granting of administration and the setting off and allowing of real estate and personal property to widows and surviving husbands. Use the Rhode Island probate court directory to find the right one.

On forms, the Rhode Island Department of State publishes the statewide probate forms under § 33-22-16, and that index lists PC-9.4 Allowance for Support of Family and PC-10.2 Allowance of Furniture. It publishes no elective-share form and no life-estate waiver form. Sections 33-25-4 and 33-28-4 both call for a written statement rather than a numbered form, and the index warns that several forms are not available online, so ask the probate court in the decedent's city or town what it wants filed. See how a Rhode Island probate case runs for the surrounding procedure, and Rhode Island will requirements for what makes the underlying will provable.

The election runs one direction once the court decides it, and the arithmetic on a blended family, a mortgaged house or an estate holding one high-value parcel is easy to get wrong. A licensed Rhode Island attorney reading the will, the inventory and the deed is the usual way this decision gets made.

Frequently Asked Questions

Does Rhode Island have an elective share?

Yes. Chapter 33-28 of the Rhode Island General Laws creates it, and § 33-28-1(a) sets it equal to two things: the life estate and allowance in the decedent's real estate titled in the decedent's name individually at death under §§ 33-1-5 and 33-1-6, plus the share of the decedent's personal estate subject to probate under § 33-1-10. The spouse may take it in kind or take the value of it.

How much is the Rhode Island elective share?

Rhode Island writes no single fraction. On real estate the spouse takes a life estate, plus a discretionary set-off of up to $150,000 in fee. On personal property the spouse takes $50,000 plus half the surplus where the decedent left no issue, or half the surplus with no dollar base where there is issue. The surplus is measured after just debts, funeral charges and the expenses of settling the estate.

How long does a Rhode Island surviving spouse have to elect?

Six months after the date of the first publication of the qualifications of the fiduciary, under § 33-28-4(a). Within that same six months the spouse may petition for an extension, and § 33-28-4(b) caps the extension at nine months after the decedent's death. The window opens on publication, and the extension ceiling runs from the death.

Does Rhode Island still have dower and curtesy?

No. Section 33-25-1 abolished common law and statutory dower and curtesy. What replaced them is the § 33-25-2 life estate, which passes the decedent's fee simple real estate to the surviving spouse for that spouse's natural life. Chapter 33-25 still carries the historical title Dower and Curtesy, which is why the old words keep surfacing.

Does the Rhode Island elective share reach joint accounts or life insurance?

No. Section 33-28-1(a)(1) reaches real estate titled in the decedent's name individually at the time of death, and § 33-28-1(a)(2) reaches the personal estate subject to probate. Survivorship property, tenancy by the entirety, trust assets, payable-on-death accounts and beneficiary designations sit outside both limbs. Rhode Island wrote no augmented-estate rule that pulls them back.

Can a Rhode Island surviving spouse stay in the house?

The § 33-25-2 life estate gives the surviving spouse use of the real estate the decedent owned in fee simple at death, for the spouse's natural life, subject to any encumbrances existing at death. Section 33-25-3 puts that life estate ahead of claims by creditors of the decedent or the estate, except claims secured by a lien or other encumbrance on the real estate.

Is there a Rhode Island homestead allowance for a surviving spouse?

No. Chapter 33-10 names no dollar amount at all, and Title 33 creates no fixed-sum probate homestead allowance. The $500,000 figure in § 9-26-4.1 is an automatic homestead estate that shields a living owner's principal residence from attachment, levy on execution and sale for payment of debts or legacies. It is not money paid out of an estate.

Can a Rhode Island spouse waive these rights before death?

Yes. Section 33-28-3(a) allows a written contract, agreement or waiver signed by the surviving spouse, made before or after the marriage, covering the elective share and the chapter 33-10 allowances wholly or partially, and it is enforceable without consideration. It fails only if the spouse proves it was not executed voluntarily, or that it was unconscionable when executed and the disclosure conditions in § 33-28-3(b) went unmet.

Related Guides

This guide is general information about Rhode Island estates, not advice for your situation. Confirm anything that affects your estate with the probate court of the city or town where the decedent lived, or with a licensed Rhode Island attorney.

Sources:

It is not legal advice.

Information current as of August 2, 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 Rhode Island can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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