Alabama law affords surviving spouses important rights and benefits.  In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements. Download the complete surviving spouse guide here.

What if a Spouse Dies Without a Will?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern.  Under Alabama law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.
  • INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN OR PARENT OF DECEDENT.  If the only survivor is a surviving spouse then the surviving spouse receives the entire intestate estate of the decedent. See Ala. Code. Sec. 43-8-41(1).
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN BUT PARENT(S) OF DECEDENT.  If there are no surviving issue (children or lineal descendants) but the decedent is survived by one or more parents, the surviving spouse is entitled to the first $100,000 in value, plus one-half of the balance of the intestate estate. See Ala. Code. Sec. 43-8-41(2).
  • SHARE OF SURVIVING SPOUSE – ALL CHILDREN OF SURVIVING SPOUSE.  If there are descendants of the decedent, all of whom are the children of the surviving spouse, regardless of how many, the surviving spouse receives the first $50,000 of the estate, and one-half of the rest, with the children receiving the other half. See Ala. Code. Sec. 43-8-41(3).
  • SHARE OF SURVIVING SPOUSE – CHILDREN OF DECEDENT.  If there are descendants of the decedent, regardless of how many, one or more of who are not issue of the surviving spouse, the surviving spouse receives one-half of the intestate estate. See Ala. Code. Sec. 43-8-41(4).

 What is a Pretermitted Spouse?

  • PRETERMITTED SPOUSE.  If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called a pretermitted spouse.  Under Alabama law, a pretermitted spouse is entitled to take a share of the estate as if the decedent died intestate. See Ala. Code. Sec. 43-8-90(1).

Elective Share or Election Against a Will

  • ELECTIVE SHARE. Under Alabama law, a surviving spouse has a right to share in a decedent’s estate.  In essence, a surviving spouse’s Right of Election renders it impossible to disinherit a spouse. The elective share is only available when the decedent left a will.  Absent a will, the surviving spouse would be entitled to a share of the decedent’s estate under the intestacy laws noted about, without the need for an elective share. Alabama Code Section 43-8-70 provides that a surviving spouse has the right to override the Will’s terms and receive the lesser of:

> One-third of the decedent’s estate; or

> All of the decedent’s estate subtracted by the value of the surviving spouse’s separate (see below) estate.

  • Separate Estate – Defined: The “separate estate” includes all of the property owned by the surviving spouse, after the decedent’s death outright or in fee simple absolute and all legal and equitable interests in property acquired by the surviving spouse having survived the decedent. This separate estate also includes all income or beneficial interests: under a trust, proceeds of decedent’s life insurance, pension plan, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer. See Ala. Code. Sec. 43-8-70(b).
  • SATISFACTION: The value of the elective share is satisfied based on a defined priority of assets and property. Following this statutorily-proscribed method, the remaining property of the estate is equitably apportioned to satisfy the surviving spouse’s elective share.  See Ala. Code. Sec. 43-8-75. Alabama law further provides for an abatement order pursuant to Ala. Code. Sec. 43-8-76.
  • DEADLINE FOR FILING FOR THE ELECTIVE SHARE.  The petition for the elective share must be made within six months from later date of the decedent’s death or the probate of decedent’s will. There are exceptions to this these statutory time limitations affording Surrogate’s Court judges some leeway. See Ala. Code. Sec. 43-8-73(a). It is important, however, to act as quickly as possible to avoid any pitfalls that may result from a failure to make such an election.

Exempt Property

Regardless of whether a surviving spouse elects to take an elective share, he or she is entitled to homestead allowance, exempt property, and family allowance. See Ala. Code. Sec. 43-8-74.

  • HOMESTEAD ALLOWANCE: A surviving spouse of a decedent who was domiciled in Alabama is entitled to a homestead allowance of $6,000.  Pursuant to Ala. Code. Sec. 43-8-110(a) “the homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent unless otherwise provided in the will, by intestate succession or by way of elective share.”  Further, the surviving spouse may retain possession of the home where he or she resided with the decedent until homestead is ultimately assigned.  This stay is free from the payment of rent.  The obligation to pay rent, if any, is the responsibility of the decedent’s estate.  See Ala. Code. Sec. 43-8-114.
  • EXEMPT PROPERTY: In addition to homestead allowance, the surviving spouse is entitled to receive, property of a value not exceeding $3,500.  See Ala. Code. Sec. 43-8-111.
  • FAMILY ALLOWANCE: The surviving spouse who was supported by the decedent is entitled to a reasonable allowance in money from the state for maintenance purposes during the period of estate administration.  This allowance may not continue in excess of one year if the estate is inadequate to discharged allowed claims.  See Ala. Code. Sec. 43-8-112.

Marital Agreements

  • MARITAL AGREEMENTS.  Martial Agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse.  It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly address any rights you may have at death or as a surviving spouse.   It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements.  Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements.

Requirement to File a Known Will

  • File a known will.  Under Alabama law, wills shall not be effective unless filed for probate within five years from the death of the Testator.
  • WHO MAY FILE A WILL. Essentially anyone interested in the estate that has custody of the will may have the will proved before the probate court.

What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?

  • Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.