Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Under Utah’s intestate succession laws (see Utah Code § 75-2-102), a surviving spouse normally receives a portion of the decedent’s estate when there is no valid will. However, Utah law also allows a surviving spouse to elect to take a life estate in the decedent’s real property instead of accepting the standard intestate share. This election is governed by Utah Code § 75-2-402.
To make the election, the surviving spouse must:
- File a written notice of election with the personal representative of the estate within four months after the personal representative’s appointment.
- Clearly describe the real property subject to the life estate and sign the notice.
- Ensure the personal representative acknowledges the election and records it in the estate’s court file.
Once the election is properly filed, the surviving spouse obtains a life estate in the described real property. During the spouse’s lifetime, they have the right to possess, use, and receive income from that property but cannot sell or encumber the fee simple interest without the remainder beneficiaries’ consent. Upon the spouse’s death, the property passes outright to the other heirs as provided by Utah’s intestate succession provisions.
Helpful Hints
- Watch the four-month deadline—missing it typically waives the right to elect.
- Prepare the election notice as soon as the personal representative is appointed.
- Keep copies of all filings and confirmations from the estate’s personal representative.
- Review property descriptions with a surveyor to avoid boundary disputes.
- Discuss potential tax impacts, such as property tax reassessment or income tax on rental earnings.