“New Statutory Elective Share for Surviving Spouses in Rhode Island”

A surviving spouse's rights and interests to assets of a deceased spouse have been clarified and expanded by a new spousal elective share statute in Rhode Island (R.I.G.L. § 33-28-1 et. seq.).

July 2014

A surviving spouse’s rights and interests to assets of a deceased spouse have been clarified and expanded by a new spousal “elective share” statute in Rhode Island (R.I.G.L. § 33-28-1 et. seq.).  The new statute became effective on July 1, 2014.  Under the new law, an elective share allows a surviving spouse to choose to receive a distribution from the deceased’s estate in an amount equal to the value of the statutory life estate interests in any real estate owned by the deceased, free and clear of any rights and interests of other heirs, as well as furnishings, household effects, supplies and other personal property exempt from attachment by law.  The elective share may be paid out in the form of an in-kind distribution of assets or cash.

The new law brings Rhode Island closer in line with other elective share states, but stops short of adopting approaches based on the Uniform Probate Code (UPC) that allow surviving spouses a percentage share of augmented estate assets, including assets transferred to a revocable trust.  For example, Massachusetts allows an elective share equal to one-third of the deceased’s real and personal property, including property held in a revocable trust, where the deceased left living descendants, or up to one-half of such property if the deceased left no living descendants.  In either case, the surviving spouse receives the first $25,000 outright and the excess over $25,000 in the form of a life estate.  Florida’s elective share for a surviving spouse equals 30% of the fair market value of qualified assets owned by the deceased individually, jointly or in a revocable trust, excluding real estate in other jurisdictions.

Since 1978, when the common law and statutory law rights of dower and curtesy were abolished in Rhode Island, a surviving spouse has been entitled to a statutory life estate interest in any real estate (as may be encumbered) owned by the deceased in fee simple, but subject to the deceased’s right to make alternative provisions in his or her last will and testament.  If a bequest or devise of any property was made under the deceased’s will for the benefit of the surviving spouse, the bequest or devise would preclude the life estate unless the surviving spouse opted to file a waiver of the bequest or devise with the probate court within six months of the appointment of a fiduciary in the deceased’s estate.  If the deceased had no last will and testament and no living descendants, the surviving spouse was also granted a statutory right to seek an allowance and set-off of the real estate in fee to the extent of $75,000 in value. 

The elective share statute provides clarification that a life estate interest is available to any surviving spouse and allows a surviving spouse, regardless of whether the deceased left any living descendants, the option of receiving the value of the life estate interests and an increased allowance and set-aside amount of up to $150,000.  Under prior law, if the surviving spouse was not interested in maintaining a life estate where the deceased’s heirs at law owned the remainder interests, the surviving spouse might seek to have the real estate sold or obtain an allowance and set-off of the real estate (limited to the amount of $75,000, as described above).  Now a surviving spouse is permitted to receive a distribution of the full value of the life estate interests, plus an allowance and set-off up to $150,000 as an elective share in lieu of the life estate interests.  Exercise of the elective share right must be accomplished by petitioning the probate court within six months of the appointment of a fiduciary.



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