In Oklahoma, surviving spouses have statutory protections to ensure that they will receive a fair share of their deceased spouse’s estate. Listed below are some of the potential protections that may be available to a surviving spouse. To best determine whether a protection applies to you or to ensure that your spouse is well-provided for in the event of your passing, seek an estate planning attorney to discuss your options.
Intestate Share (Without a Will)
In Oklahoma, if a person dies without a valid will, he or she dies intestate. According to Oklahoma’s intestacy laws (84 Okla. Stat. § 213), the surviving spouse will receive a portion of the deceased spouse’s estate based upon the number of survivors of the deceased spouse. If the deceased spouse has no survivors other than the surviving spouse (no living children or descendants from those children, no parents, and no siblings or descendants from those siblings), then the surviving spouse will receive the entire estate. If the deceased spouse leaves no children but is survived by either parents or siblings, then the surviving spouse will be entitled to all the property acquired by the joint effort of both spouses during the marriage and one-third of the remaining estate. If the deceased spouse leaves only children shared with the surviving spouse, then the surviving spouse will receive one-half of the estate and the rest of the estate will go to the children. However, if the deceased spouse leaves any children not shared with the surviving spouse, then the surviving spouse will receive half of the property acquired by the joint effort of both spouses during the marriage and an equal share of the property not acquired by mutual effort during the marriage, split proportionally among the surviving spouse and the deceased spouse’s children.
Elective Share (With a Will)
Under Oklahoma law (84 Okla. Stat. § 44), a spouse cannot be disinherited through a will or provided less than what the spouse would have been entitled to receive if the deceased spouse had died intestate. If the deceased spouse’s will provides the surviving spouse with less than one-half of the property acquired by mutual effort by both spouses during the marriage, then the surviving spouse may petition for this portion of the deceased spouse’s estate by filing a written document electing for his or her share of the deceased spouse’s estate in the district court in which the estate of the deceased spouse is being administered on or before the final date for hearing of the petition for final distribution of the estate. This written document must be filed separately from other pleadings and documents filed in the district court for the administration of the deceased spouse’s estate. If the surviving spouse fails to comply with these requirements by the deadline, then the surviving spouse forfeits his or her right to receive the entitled portion of the deceased spouse’s estate.
Property Exemptions
Surviving spouses have certain property protections under Oklahoma law (58 Okla. Stat. § 311) when a spouse dies. Surviving spouses are entitled to possess and occupy their homestead for as long as it remains their primary residence, and surviving spouses also have the statutory right to claim certain property, such as family pictures, the deceased spouse’s clothing, and household furniture. These property exemptions are applicable even when the deceased spouse provides otherwise in his or her will.
Widow/Widower Allowance
If the deceased spouse’s estate has not provided a sufficient amount to support a surviving spouse and other allowances and exemptions (e.g., property exemptions) do not apply, then the surviving spouse may be entitled to a support allowance for up to one year to assist with living maintenance during the settlement of the deceased spouse’s estate. See 58 Okla. Stat. § 314.
These are just a few of the many benefits and rights that a surviving spouse has in Oklahoma. If you’d like to consult our attorney about your rights in a probate, contact us today or book an appointment online!
