Wyoming Surviving Spouse Rights

A Wyoming will cannot cut a surviving spouse down to less than a statutory floor unless the spouse agreed to it in writing. Under W.S. 2-5-101(a), the spouse of a married person domiciled in Wyoming can elect one-half of the probate estate, or one-fourth when the decedent left children and the spouse is the parent of none of them. The spouse claims it by petition in the district court within three months after the will is admitted to probate, or within 30 days after the court explains the right, whichever is later.

That share sits on top of three family protections: the right to stay in the home during administration, a family allowance, and exempt property that includes a $30,000 probate homestead. When there is no will at all, the spouse takes one-half or all of the estate under W.S. 2-4-101.

Wyoming never adopted the Uniform Probate Code. Its elective share reaches only property the will controls, and it has no marriage-length schedule. A summary written for a UPC state will get a Wyoming estate wrong.

Every Protection in One Table

Right	What the spouse receives	Statute
Elective share	One-half or one-fourth of the net property subject to the will	2-5-101(a)
Intestate share	One-half with descendants, everything without them	2-4-101(a)
Homestead, apparel and furniture	Possession until letters issue and the inventory is returned	2-7-501(a)
Family allowance	A reasonable amount for support during the settlement of the estate	2-7-501(a), 2-7-502
Exempt property	All property exempt from execution, as the spouse's absolute property	2-7-504
Probate homestead	Capped at $30,000 in value	2-7-508
Priority to serve	First in line to administer an intestate estate	2-4-201(a)(i)
Notice	A mailed copy of the probate notice within one week of first publication	2-7-205(a)(i)

Let's take each one in turn.

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How much the spouse can take

W.S. 2-5-101(a) sets two fractions, and one family fact picks between them.

Family situation at death	Elective share	Statute
The decedent left no surviving issue	One-half	2-5-101(a)(i)
The decedent left issue, and the spouse is a parent of at least one of them	One-half	2-5-101(a)(i)
The decedent left issue, and the spouse is the parent of none of them	One-fourth	2-5-101(a)(ii)

The test is parentage, not the length of the marriage. A spouse married for one year with no stepchildren in the picture can claim one-half. A second spouse married for thirty years to someone whose only children came from an earlier marriage can claim one-fourth.

What the fraction applies to

The share is measured on "the property which is subject to disposition under the will," reduced by:

funeral and administration expenses
the homestead allowance
family allowances and exemptions
enforceable claims

That is the probate estate, net of those items. Wyoming has no augmented estate, so the statute does not pull in property that passes outside the will. A life insurance policy with a named beneficiary, a retirement account, a payable-on-death account, joint tenancy property and land passing under a recorded deed all sit outside the measure. Read what the elective share cannot reach before assuming a large estate means a large election.

Here is a worked example. The will leaves everything to the decedent's sister. The probate estate is $520,000. Funeral and administration costs come to $25,000, the homestead and exempt property allowances to $35,000, and allowed claims to $60,000. The net is $400,000.

If the couple had a child together, or the decedent had no children, the spouse can elect $200,000.
If the decedent's only child came from an earlier marriage, the spouse can elect $100,000.

Who can elect

The right belongs to the surviving spouse of a married person domiciled in Wyoming. When a married person who lived in another state dies owning Wyoming property, W.S. 2-5-101(b) sends the question to the law of that state.

If the spouse dies or becomes incompetent within three months after the will is admitted, or before the court advises the spouse of the right, the spouse's personal representative or guardian of the estate may make the same election (2-5-101(c)). The court then advises that fiduciary instead (2-5-104(b)).

How the Election Works in Court

Wyoming builds the election into the probate case, and the court itself starts the clock.

The inventory comes early. When 2-5-101 applies, W.S. 2-7-403(b) requires the personal representative to file the inventory within 75 days after the will is admitted, instead of the usual 120 days after appointment.
The court advises the spouse. W.S. 2-5-104(a) directs the court, at any time after the inventory is filed and not more than three months after the will is admitted, to advise the spouse of the right and to explain that the will controls if the spouse does not elect.
The spouse petitions. Under W.S. 2-5-105(a), the spouse files a petition for the elective share in the court and mails or delivers it to the personal representative, if there is one. The deadline is three months after the will is admitted or 30 days after being advised, whichever expires later.
Notice goes out. The court sets a hearing, and the spouse gives notice by certified mail at least 20 days before it to every person whose interest the share will reduce (2-5-105(b)).
The court decides. After the hearing, the court determines the right and orders the share paid from estate assets. The personal representative need not assign particular assets until the decree of distribution or another time the court sets (2-5-105(c)).

A spouse can withdraw the demand any time before the court's final determination (2-5-105(d)). A spouse can also file a renunciation or waiver of the right after being advised of it, and the will then controls (2-5-105(e)). Miss the deadline and the result is the same: under 2-5-101(d) and 2-5-105(a), the will governs.

Which gifts shrink to pay the share

W.S. 2-7-808(a) lists the order in which other distributees' shares abate to pay debts, charges, taxes, legacies and the share of a spouse who elects against the will, unless the will says otherwise:

property the will does not dispose of
the residuary gift
general gifts that are neither specific nor residuary
specific gifts

Real and personal property abate together, with no preference between them. Under 2-7-808(b), the court departs from that order when following it would defeat the testator's plan.

Waiving the Right

W.S. 2-5-102 lets a spouse waive the elective share, the homestead allowance, exempt property and the family allowance, in whole or in part. The waiver can be signed before or after the marriage, but it has to be a written contract, agreement or waiver signed by the party giving up the right, after fair disclosure.

Two shortcuts in that section catch families off guard:

A waiver of "all rights" in the other spouse's property, unless it says otherwise, waives the elective share and all three allowances.
A complete property settlement signed after or in anticipation of a separation or divorce waives the same rights, and also gives up anything the spouse would take by intestacy or under a will signed before the settlement.

The Family Protections

They come in addition to the election

W.S. 2-5-103 says the spouse keeps the homestead allowance, exempt property and family allowance whether or not the spouse elects. There is one exception. If the will clearly makes its gift to the spouse in lieu of those rights, a spouse who keeps the will's gift does not also take them.

Staying in the home and support

When a person dies leaving a spouse or minor children, W.S. 2-7-501(a) lets them remain in possession of the homestead, the family's clothing and the household furniture until letters are granted and the inventory is returned. The court also allows a reasonable provision for their support.

If the amount set apart is not enough, W.S. 2-7-502 directs the court to make a reasonable allowance from the estate for the family's maintenance during the settlement, according to their circumstances. Under W.S. 2-7-503, allowances are paid ahead of every other charge except funeral expenses and the cost of administration, and the court may make them run from the date of death. They do not undo a recorded mortgage or lien. See the family allowance for how to ask for one.

Exempt property and the $30,000 probate homestead

W.S. 2-7-504 tells the court to set over to the spouse, or to the minor children if there is no spouse, all of the decedent's property exempt from execution under Wyoming law, including the homestead, as their absolute property. It is not subject to the decedent's debts, except funeral and administration expenses when nothing else can pay them. If the decedent did not own some of the exempt items, the spouse may take their value in money or other property.

Three details matter here:

The probate homestead is $30,000. W.S. 2-7-508 fixes the homestead exemption at $30,000 wherever the Probate Code refers to it. The $100,000 figure in W.S. 1-20-101 protects a living debtor from execution. It is not the probate figure.
A split family splits the property. If the spouse is not the parent of all the minor children, one-half goes to the spouse and one-half to the minors who are not the spouse's children, with a conservator appointed for them.
Renouncing the will changes nothing. The last sentence of 2-7-504 says the spouse's right to exempt property does not depend on renouncing or accepting the will's provisions.

The execution exemptions in Title 1, chapter 20 include the family bible, pictures and school books, a cemetery lot, household furniture and provisions up to $4,000, up to $5,000 of value in a motor vehicle, and up to three firearms worth $3,000 in all (W.S. 1-20-106(a)), plus necessary clothing up to $2,000 (W.S. 1-20-105). Read exempt property and the probate homestead for the full list.

How the set-over happens

Any interested person may petition to have the exempt property and homestead set over, once the notice of probate has been published and the appraisement filed (W.S. 2-7-505). The court issues an order to show cause, published once in a county newspaper and mailed to every heir and beneficiary at least 10 days before the hearing. If the court finds the whole estate exempt, no further administration is needed unless more property turns up.

When the homestead appraises at more than $30,000, the appraisers decide whether it can be divided without material injury. If it can, they set apart the part with the house up to the exemption; if it cannot, the court may order a sale and divide the proceeds (W.S. 2-7-507). A homestead worth $30,000 or less is set off whole, and estate funds pay its liens and encumbrances first when the estate can cover all claims (W.S. 2-7-506).

Public assistance claims

W.S. 2-7-707 bars enforcing a claim to repay public assistance against estate property needed for the support, maintenance or education of the surviving spouse, a minor child or another dependent.

When There Is No Will

A spouse whose partner died intestate does not need the elective share. W.S. 2-4-101(a) gives the spouse one-half of the estate when the decedent left children or descendants of children, and all of it when the decedent left none. Parents and siblings take nothing while a spouse survives and no descendants do. W.S. 2-4-101(b) abolishes dower and curtesy, so those fractions are the spouse's entire intestate share. The full rules are in the spouse's share with no will.

The spouse also comes first in line to serve. W.S. 2-4-201(a)(i) gives the surviving spouse, or a competent person the spouse asks the court to appoint, first priority to administer an intestate estate. Under 2-4-201(c), a nonresident of Wyoming can serve only with a Wyoming resident appointed as co-administrator. The personal representative's duties page covers the job.

Notice of the Probate

W.S. 2-7-205(a)(i) requires a copy of the notice of probate to go by first-class mail to the surviving spouse, the heirs and the beneficiaries no later than one week after the notice first appears in the newspaper. Later hearing and sale notices also go to the spouse at least 10 days ahead unless waived in writing (2-7-205(b)).

Joint Property and Survivorship

Property the couple held as joint tenants with right of survivorship, or as tenants by the entirety, passes to the survivor outside probate. W.S. 2-9-102 lets any interested person put the death on record by filing an affidavit with the county clerk where the property sits, attaching a certified copy of the death certificate.

A couple that once lived in a community-property state may hold property covered by W.S. 2-7-720 to 2-7-729. Under W.S. 2-7-723, one-half of that property already belongs to the surviving spouse, and the decedent's half is not subject to the elective share.

Divorce, Remarriage and Old Wills

W.S. 2-6-125(b) makes a divorce or annulment immediately:

revoke revocable gifts to the former spouse and to the former spouse's relatives
revoke a power of appointment given to them
revoke their nomination as personal representative, trustee, conservator, agent or guardian
turn a joint tenancy or tenancy by the entirety between the former spouses into a tenancy in common

The will then reads as if the former spouse disclaimed those gifts (2-6-125(d)). Three limits apply. A decree of separation that leaves the marriage in place is not a divorce (2-6-125(a)(i)). A divorce decree, court order or contract dividing the marital estate can say otherwise (2-6-125(b)). And a remarriage to the same person revives the revoked provisions unless a prenuptial or other written agreement signed by both forbids it (2-6-125(e)).

Marriage after a will is signed does not revoke the will. W.S. 2-6-125(f) says no change of circumstances other than divorce or annulment revokes a will. A new spouse left out of an older will relies on the elective share and the family protections. See Wyoming will requirements for how to update a will.

When to Bring in a Wyoming Attorney

Many spouses never elect, because the will already leaves them the estate. Talk with a licensed Wyoming attorney when:

the will leaves the spouse little and most of the wealth passes by beneficiary designation or joint title
the decedent's only children came from an earlier marriage, which drops the share to one-fourth
a premarital agreement or property settlement exists and the disclosure behind it is in doubt
the will says its gift to the spouse replaces the allowances
the decedent lived in another state and left Wyoming land or minerals
the spouse is ill or incompetent and a guardian may need to act

The Wyoming probate guide explains how an estate opens in the district court, and the list of Wyoming district courts by county shows where to file.

Frequently Asked Questions

Can a Wyoming will disinherit a surviving spouse?

Not completely, unless the spouse waived the right. W.S. 2-5-101(a) lets the surviving spouse of a married person domiciled in Wyoming elect a share of the property subject to disposition under the will, after funeral and administration expenses, the allowances and enforceable claims. The share is one-half if the decedent left no surviving issue or the spouse is a parent of any of them, and one-fourth if the spouse is not the parent of any surviving issue. W.S. 2-5-102 lets a spouse give up the right in a signed written agreement made after fair disclosure.

How much is the Wyoming elective share?

One-half or one-fourth of the net probate estate under W.S. 2-5-101(a). The spouse takes one-half when the decedent left no children or other issue, or when the spouse is a parent of any surviving issue. The spouse takes one-fourth when the decedent left issue and the spouse is the parent of none of them. Wyoming has no augmented estate and no schedule tied to the length of the marriage.

What is the deadline to claim the Wyoming elective share?

W.S. 2-5-105(a) requires a petition filed in the court, and mailed or delivered to the personal representative if there is one, within three months after the will is admitted to probate or within 30 days after the court advises the spouse of the right, whichever limit expires later. If no petition is filed in time, the will governs the distribution of the estate.

Do the allowances come on top of the Wyoming elective share?

Yes, as a rule. W.S. 2-5-103 says a surviving spouse is entitled to homestead allowance, exempt property and family allowance whether or not the spouse elects. The one exception is a will that clearly makes its gift to the spouse in lieu of those rights, in which case the spouse who keeps the will's gift does not also take them. The probate homestead is $30,000 under W.S. 2-7-508.

What does a Wyoming spouse inherit when there is no will?

Under W.S. 2-4-101(a), the spouse takes one-half of the estate when the decedent left children or descendants of children, and the whole estate when the decedent left none. Parents, brothers and sisters take nothing while a spouse survives and no descendants do. W.S. 2-4-101(b) abolishes dower and curtesy.

Does divorce cancel a Wyoming will's gifts to the former spouse?

Yes. W.S. 2-6-125(b) says a divorce or annulment immediately revokes revocable gifts to the former spouse and the former spouse's relatives, revokes their nominations as personal representative, trustee or agent, and turns a joint tenancy between the former spouses into a tenancy in common. A decree of separation that leaves the couple married is not a divorce for this purpose, and a remarriage to the same person revives the revoked provisions unless a signed written agreement says otherwise.

This guide organizes the statutory rights and the questions worth asking. Confirm anything that affects a particular estate with the Clerk of District Court handling it or a licensed Wyoming attorney.

Sources:

Title: W.S. 2-5-101 to 2-5-105, Elective share of property; Waiver of right of election and homestead allowance; Homestead allowance, exempt property and family allowance; exception; Duty of court to advise as to right of election; Time limit and procedure for elective share. Publisher: Wyoming Legislature, Wyoming Statutes Title 2 (Wills, Decedents' Estates and Probate Code). Publication Date: Title PDF created 2026-05-08, accessed 2026-09-28. URL: https://wyoleg.gov/statutes/compress/title02.pdf
Title: W.S. 2-7-501 to 2-7-508, Right to homestead and support; Extra allowance for maintenance of family; Preference and payment of allowances; Absolute property of surviving spouse and minor children; Procedure for setting off exempt property; Homestead to be set apart by court; Duty of appraisers to appraise and divide homestead; Amount of homestead exemption. Publisher: Wyoming Legislature, Wyoming Statutes Title 2. Publication Date: Title PDF created 2026-05-08, accessed 2026-09-28. URL: https://wyoleg.gov/statutes/compress/title02.pdf
Title: W.S. 2-7-403, 2-7-205, 2-7-707, 2-7-723 and 2-7-808, Return of inventory of estate by representative; Parties entitled to receive; Repayment of public assistance; Distribution of property upon death of a married person; Order of abatement. Publisher: Wyoming Legislature, Wyoming Statutes Title 2. Publication Date: Title PDF created 2026-05-08, accessed 2026-09-28. URL: https://wyoleg.gov/statutes/compress/title02.pdf
Title: W.S. 2-4-101 and 2-4-201, Rule of descent; generally; dower and curtesy abolished; Persons entitled to administer. Publisher: Wyoming Legislature, Wyoming Statutes Title 2. Publication Date: Title PDF created 2026-05-08, accessed 2026-09-28. URL: https://wyoleg.gov/statutes/compress/title02.pdf
Title: W.S. 2-6-125 and 2-9-102, Revocation of probate and nonprobate transfers by divorce or annulment; effect; revival; other changes excluded; Affidavit of survivorship; recordation; copy of death certificate to be attached. Publisher: Wyoming Legislature, Wyoming Statutes Title 2. Publication Date: Title PDF created 2026-05-08, accessed 2026-09-28. URL: https://wyoleg.gov/statutes/compress/title02.pdf
Title: W.S. 1-20-101, 1-20-105 and 1-20-106, Homestead exemption; right; Wearing apparel; Exemption of other personal property; personalty used in livelihood; appraisement. Publisher: Wyoming Legislature, Wyoming Statutes Title 1. Publication Date: Title PDF created 2026-05-08, accessed 2026-09-28. URL: https://wyoleg.gov/statutes/compress/title01.pdf

It is not legal advice.