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Surviving Spouse's Rights in Iowa Probate | What is the elective share of a Surviving Spouse in Iowa?

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
December 16, 2019

In this article, we answer questions surrounding surviving spouse’s rights in Iowa probate. Our Iowa probate attorneys address:

  • Settling an estate in Iowa
  • What are surviving spouse’s rights in Iowa?
  • Does a surviving spouse inherit property in Iowa?
  • What is the elective share of a surviving spouse in Iowa?
  • Are there other types of assets not affected by surviving spouse’s rights?
  • What if there is no spouse to inherit property in Iowa?

Settling an Estate in Iowa

When it comes time to settle an estate in Iowa, the goals are always the same. An estate settlement must:

  • Determine and value assets that were owned by the deceased
  • Transfer assets to the correct parties
  • Pay any taxes that may be due

Typically, these steps are accomplished through a will (trusts are also a path to estate settlement). But when neither is present, there are different steps to settling an estate, and surviving spouse’s rights play a large role in how an estate is probated in Iowa.

What Are Surviving Spouse’s Rights in Iowa?

In Iowa, surviving spouse’s rights ensure a spouse will receive an inheritance from their deceased spouse’s property, even if there is no will in place. In some situations, a spouse may inherit everything from an estate, but this depends on whether the deceased had children from a previous relationship.

For example, Bill passes away without a will to determine how his $400,000 estate should be managed. Bill and his wife Jane have two grown children. In this situation, Jane would inherit everything.

But if Bill was married to Sarah before Jane, and Bill and Sarah had a son named Tom, Bill’s estate would be split 50/50 between Jane and Tom.

The only exception to this is if Bill’s estate were smaller. Surviving spouse’s rights in Iowa guarantee Jane at least $50,000. If Bill’s estate was valued at $75,000, Jane would get $50,000 and Tom would inherit $25,000 instead of the estate being split down the middle.

Does a Surviving Spouse Inherit Property in Iowa?

Yes, a surviving spouse will always inherit property (as in a home) that is either jointly owned with their deceased spouse or solely owned by their deceased spouse, as long as the mortgage is in good standing or the property is owned outright. The value of the home is not taken into consideration when an estate is in probate. Surviving spouse’s inherit houses outright and they are not classified as intestate property.

What is the Elective Share of a Surviving Spouse in Iowa Probate?

If the deceased spouse had a valid will, the surviving spouse has the option to either accept what he or she is left under the will, or instead take the surviving spouse's elective share of the estate. If the surviving spouse chooses to take the elective share, he or she will be entitled to all personal property that would be exempt from collection by creditors according to Iowa law, 1/3 of all non-exempt personal property, and 1/3 of the value of real estate after debts have been paid. Instead of taking 1/3 of the value of real estate, the surviving spouse may choose to occupy the marital residence.

In order to exercise the option to take the surviving spouse's elective share, the surviving spouse must file an affidavit with the court stating his or her intention to do so. In the absence of such an affidavit, the estate will be distributed according to the will.

Should the surviving spouse take his or her elective share, the rest of the estate will be distributed according to the will as if the surviving spouse had predeceased the deceased spouse.

Are There Other Types of Assets Not Affected by Surviving Spouse Rights?

Like a home, there are other valuable assets that don’t go through probate in Iowa. These include property transferred to a living trust, life insurance proceeds, 401(k) funds, payable-on-death bank accounts, or property jointly owned with another party. These assets would be passed to beneficiaries or surviving co-owners.

What If There Is No Spouse to Inherit Property in Iowa?

If there is no will for an estate and the decedent was not married, had no children, and no other immediate family, their property could escheat, or revert to the state. But this is rare in Iowa as the courts will work diligently to track down any living relatives, including nieces and nephews, cousins of any degree, or even the descendants of a deceased spouse.

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Settling an Estate in Iowa

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