633.238 Elective share of surviving spouse. 1. The elective share of the surviving spouse shall be limited to all of the following:a. One-third in value of all the legal or equitable estates in real property possessed by the decedent at any time during the marriage which have not been sold on execution or otherjudicial sale, and to which the surviving spouse has made no express written relinquishmentof right, including but not limited to any relinquishments of rights described in paragraph'd'. b. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution. c. One-third of all personal property of the decedent that is not necessary for the payment of debts and charges. d. (1) One-third in value of the property held in trust not necessary for the payment of debts and charges over which the decedent was a settlor and retained at the time of death thepower to alter, amend, or revoke the trust, or over which the decedent waived or rescindedany such power within one year of the date of death, and to which the surviving spouse hasnot made any express written relinquishment in compliance with subparagraph (2). decedent waived or rescindedany such power within one year of the date of death, and to which the surviving spouse hasnot made any express written relinquishment in compliance with subparagraph (2). (2) The elective share of the surviving spouse shall not include the value of the property held in a trust described in subparagraph (1), if both of the following are true: (a) The decedent created the trust after the date of decedent’s marriage to the surviving spouse. (b) Every transfer of property into the trust, except for tangible personal property, included a written statement which complied with this subparagraph division. The writtenstatement shall be in boldface type of a minimum size of ten points, signed and dated by thesurviving spouse with a valid notarial acknowledgment, and in substantially the followingform: By signing below, I acknowledge that I am giving up all rights to enjoyment of the property described above, regardless of whetheror not I survive my spouse and regardless of any rights Iowalaw otherwise gives to me with respect to such property. I amspecifically waiving my elective share in the property described inthis waiver. r not I survive my spouse and regardless of any rights Iowalaw otherwise gives to me with respect to such property. I amspecifically waiving my elective share in the property described inthis waiver. This waiver shall apply regardless of any changes made to the trust in the future, including any change to the beneficiaries of thetrust. 2. When a settlor of a revocable trust transfers real property to the trustee of the revocable trust and the settlor’s spouse signs a conveyance of the real property to such trustee whichincludes a general waiver of rights of dower, homestead, and distributive share, the spouse isonly relinquishing the right to that real property and its value under subsection 1, paragraph'a', for the purpose of conveying marketable title to a subsequent purchaser from the trusteeand is not relinquishing the right to the value of the real estate under subsection 1, paragraph'd', unless the spouse specifically states in writing an intent to relinquish the right to thevalue of the real estate under subsection 1, paragraph 'd'. The relinquishment of right undersubsection 1, paragraph 'a' shall not prevent the surviving spouse from electing one-third invalue of such value of the real estate under subsection 1, paragraph 'd'. The relinquishment of right undersubsection 1, paragraph 'a' shall not prevent the surviving spouse from electing one-third invalue of such real property under subsection 1, paragraph 'd'. 3. The elective share described in this section shall be in lieu of any property the spouse would otherwise receive under the last will and testament of the decedent, through intestacy,or under the terms of a revocable trust. [C51, §1329, 1390, 1394, 1421; R60, §2361, 2422, 2477, 2479; C73, §2371, 2436, 2440; C97, §3312, 3362, 3366; C24, 27, 31, 35, 39, §11918, 11986, 11990, 11991; C46, 50, 54, 58, 62,§635.7, 636.1, 636.5, 636.6; C66, 71, 73, 75, 77, 79, 81, §633.238] 2005 Acts, ch 38, §14; 2009 Acts, ch 52, §4, 14; 2015 Acts, ch 125, §4, 7Referred to in §614.14, 633.236, 633.237, 633.239, 633.240, 633.246 Sat Dec 23 11:24:37 2023 Iowa Code 2024, Section 633.238 (42, 0)
Iowa Legal Code