New Hampshire spousal laws provide immense protection to the surviving spouse. Under the governing law, a surviving spouse may elect to take a one-third share of the real or personal property if his or her deceased spouse left no children. This provision is an election against the homestead right and anything that the surviving spouse would have received under the will.
In the event the decedent left no children nor descendants, but did leave a parent or sibling, the surviving spouse takes $10,000 of personal property and $10,000 of real property, plus one half of the balance of the estate. If the value of the real estate does not exceed $10,000 the surviving spouse is entitled to the entire share.
Decedent leaves no children, parents, or siblings:
If the decedent leaves no children or issue of any deceased children, nor mother or father, nor sister or brother surviving, ten thousand dollars of the value thereof, plus two thousand dollars for each full year from the date of marriage to decease of spouse, and also one-half in value of the remainder above said sum computed as above, in the personalty, and the same in the real estate, the real estate to be assigned in the same manner as dower has heretofore been assigned. Where the inventory value of the real estate does not exceed ten thousand dollars, the surviving spouse shall be entitled to the whole of said remainder and no assignment of the same shall be required unless some party in interest shall petition the probate court therefor.
N.H.R.S.A. 560:10 (III).
The surviving spouse must file a waiver within six (6) months after the Estate’s executor is appointed.
Further, the right of a surviving spouse to waive the provisions of their deceased spouse’s will and take via the spousal elective share statute is personal to the surviving spouse. See, e.g., Penhallow v. Kimball, 61 N.H. 596 (N.H. 1882).