Detailed Answer
Under Mississippi law, a surviving spouse cannot elect to receive a life estate in decedent’s real property instead of an intestate share. Mississippi abolished dower and curtesy and replaced them with a statutory elective share. A surviving spouse may choose either the intestate share or a one-third elective share of the augmented estate, but the law does not authorize a life estate election.
1. Intestate Succession
When a person dies without a will, their estate distributes under Miss. Code § 91-1-7. If the decedent had children or descendants, the spouse inherits one-third of the probate estate and the children share the remaining two-thirds. If there are no descendants or parents, the spouse inherits the entire estate.
2. Elective Share
Under Miss. Code § 91-1-15, a surviving spouse can renounce the intestate share and elect to take one-third of the “augmented estate,” which includes certain nonprobate transfers. This election must be filed in the appropriate probate court within one year of the decedent’s death.
3. No Statutory Life Estate Election
Mississippi law does not provide a mechanism for a surviving spouse to elect a life estate in real property in place of the intestate or elective share.
4. Additional Spousal Allowances
- Homestead Allowance: Up to $7,500 for the surviving spouse’s residence (Miss. Code § 91-13-1).
- Exempt Property: Up to $10,000 in personal property items (Miss. Code § 91-7-171).
- Family Allowance: Reasonable support during estate administration (Miss. Code § 91-7-201).
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney regarding your situation.
Helpful Hints
- File any elective share petition within one year of death to preserve your rights.
- Compile documentation of the decedent’s assets early to accurately calculate the augmented estate.
- Review homestead and exempt property allowances before deciding on an election.
- Consider seeking legal counsel if you have complex estate or family circumstances.