As a community property state, the surviving spouse is entitled to half of the community property.  The right to an “elective share” is limited to one-half of the total augmented quasi-community property estate. The augmented estate includes property received from the decedent but not owned by the surviving spouse at the time of decedent’s death, plus the value of property transferred by the surviving spouse without full or adequate consideration during the marriage.  Further, the augmented estate includes property transferred via joint ownership from the decedent to the surviving spouse.

Community property is property acquired while the surviving spouse and decedent were married. Quasi-community property is an additional safeguard afforded to the surviving spouse that accounts for property the spouses acquired during the marriage but outside of the state of Idaho.  The surviving spouse is entitled to include this real and personal property in the calculation towards the elective share.  Idaho Admin. Code §§ 15-2-201-203.

The surviving spouse’s elective share to the quasi community estate shall be reduced by an allocable portion of the general administration expenses, homestead allowance, family allowance, exempt property and enforceable claims. Idaho Admin. Code r. 15-2-203(b).

The surviving spouse may elect to take his or her elective share in the augmented net estate by mailing or delivering to the personal representative of filing in the court a petition for the elective share by the later of nine (9) months after the death of the decedent’s death or six (6) months after the date of the filing of the petition for probate.  Idaho Admin. Code r. 15-2-205(a). The Court may permit additional time for the surviving spouse to elect as it sees fit for cause.