Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for advice specific to your situation.
Detailed Answer
1. Overview of Intestate Succession in Oklahoma
When a person dies without a will in Oklahoma, their estate passes by intestate succession under Title 84 of the Oklahoma Statutes (Intestate Succession). The surviving spouse’s share depends on whether the decedent left descendants (children, grandchildren) and whether those descendants are also descendants of the surviving spouse:
- No descendants or all descendants are of the surviving spouse: spouse inherits the entire estate.
- Descendants exist in part from another relationship: spouse inherits one-half of the estate; the other half goes to those descendants.
See Oklahoma Statutes Title 84 § 213 for the surviving spouse’s statutory share (84 O.S. § 213).
2. Election of a Life Estate Instead of an Intestate Share
Under 84 O.S. § 213, a surviving spouse may elect to take a life estate in the decedent’s real property (including the homestead) rather than their monetary or fee interest share. In practical terms, this means the spouse retains possession and use of the residence during their lifetime. Upon the spouse’s death, ownership (the remainder interest) passes to the decedent’s other heirs as if the spouse had died intestate.
Key points:
- Eligible property: Generally, the decedent’s homestead and adjoining curtilage.
- Form and timing: The election must be made in writing and filed with the probate court handling the decedent’s estate, typically within six months after the appointment of a personal representative or personal service of notice.
- Effect: The spouse loses the right to a fee interest share in that real property but enjoys lifetime use and possession.
3. How to Make the Election
- Obtain the decedent’s probate case number from the county court.
- Prepare a written election stating: “I elect to take a life estate in the real property described as my spouse’s homestead instead of my statutory intestate share.”
- File the election with the clerk of the district court and serve a copy on the personal representative.
- If you wish to protect your interest against third parties, record a certified copy of the recorded election instrument in the county land records.
Helpful Hints
- Review county court deadlines carefully to avoid missing the six-month election period.
- Confirm the legal description of the homestead matches the real property records.
- Consider how a life estate affects Medicaid planning and property taxes.
- Understand that a life estate cannot be revoked unilaterally once properly filed.
- Consult an attorney to ensure your election is properly drafted and recorded.