72-2-221. Elective share. (1) The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

     If the decedent and the     The elective-share
     spouse were married to     percentage is:
     each other:
     Less than 1 year     supplemental amount only
     1 year but less than 2 years     3% of the augmented estate
     2 years but less than 3 years     6% of the augmented estate
     3 years but less than 4 years     9% of the augmented estate
     4 years but less than 5 years     12% of the augmented estate
     5 years but less than 6 years     15% of the augmented estate
     6 years but less than 7 years     18% of the augmented estate
     7 years but less than 8 years     21% of the augmented estate
     8 years but less than 9 years     24% of the augmented estate
     9 years but less than 10 years     27% of the augmented estate
     10 years but less than 11 years     30% of the augmented estate
     11 years but less than 12 years     34% of the augmented estate
     12 years but less than 13 years     38% of the augmented estate
     13 years but less than 14 years     42% of the augmented estate
     14 years but less than 15 years     46% of the augmented estate
     15 years or more     50% of the augmented estate
     

     (2) If the sum of the amounts described in 72-2-222(2)(d), 72-2-227(1)(a), and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under 72-2-227(2) and (3) is less than $50,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $50,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in 72-2-227(2) and (3).
     (3) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.
     (4) The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

     History: En. 91A-2-201 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-2-201; amd. Sec. 50, Ch. 494, L. 1993; Sec. 72-2-702, MCA 1991; redes. 72-2-221 by Code Commissioner, 1993; amd. Sec. 4, Ch. 592, L. 1995.