Spouse and Children Protections in Idaho Probate

Part of my Idaho Wills & Probate Overview.

By Ronald W. Brilliant, Attorney at Law · Licensed in Idaho, Nevada & California · Last reviewed: September 2026 against the Idaho Code as posted by the Idaho Legislature (July 1, 2026)

In This TopicIdaho Wills & ProbateTopic 5 of 15: Spouse & Child Rights

Idaho’s probate code gives a surviving spouse, and in some cases the decedent’s children, certain rights that do not depend entirely on what the will says. These include a share of quasi-community property, the elective share, protection for a spouse or child left out of an older will, the homestead allowance, and exempt property (Idaho Code §§ 15-2-201 to 15-2-406).

This page is for surviving spouses, children, and personal representatives who need to understand these rights. Several of them must be claimed within a deadline, and some can be limited by a will or waived by a written agreement.

Who Counts as a Surviving Spouse

A person who is divorced from the decedent, or whose marriage to the decedent was annulled, is not a surviving spouse unless they later remarried and were married at the time of death (Idaho Code § 15-2-802(a)). For the rights on this page, a surviving spouse also does not include a person who was a party to a valid proceeding that ended with an order purporting to terminate all marital property rights, among other situations listed in the statute (§ 15-2-802(b)).

A spouse or child who does not survive the decedent by 120 hours is treated as having died first for purposes of the homestead allowance and exempt property (Idaho Code § 15-2-104). A “slayer” is treated as having died first as to property acquired by statutory right as surviving spouse (Idaho Code § 15-2-803(c)).

Community Property and Quasi-Community Property

A married person’s will controls only the decedent’s share of the couple’s community property (Idaho Code § 15-3-101). Community property is generally property acquired after marriage by either spouse, other than separate property (Idaho Code § 32-906(1)). If the decedent’s share is not left by will, it goes to the surviving spouse (Idaho Code §§ 15-2-102(b)(1), 15-3-101).

Quasi-community property covers property a married person acquired while living in another state that would have been community property if the person had lived in Idaho when it was acquired (Idaho Code § 15-2-201(b)). It includes all such personal property wherever located and such real property in Idaho, plus property acquired in exchange for it (§ 15-2-201(b)).

When a married person domiciled in Idaho dies, one-half of the quasi-community property belongs to the surviving spouse (§ 15-2-201(a)). The other half can be left by the decedent’s will, and if it is not, it also goes to the surviving spouse (§ 15-2-201(a)). All quasi-community property is subject to the decedent’s debts (§ 15-2-201(c)).

Transfers the Spouse Can Recover

If a married person domiciled in Idaho transferred quasi-community property to someone other than the spouse, without adequate consideration and without the spouse’s consent, the surviving spouse may require the recipient to restore it to the estate (Idaho Code § 15-2-202). This applies if (§ 15-2-202(a)-(d)):

• the decedent kept, at death, possession or enjoyment of the property or the right to its income;
• the decedent kept, at death, a power (alone or with another) to revoke, or to consume, invade, or dispose of the principal for his or her own benefit;
• the decedent held the property at death with another person with a right of survivorship; or
• the decedent transferred the property within two years of death, to the extent the total transfers to any one recipient in either year exceeded $10,000 or the federal gift tax annual exclusion under 26 U.S.C. § 2503, whichever is greater.

The recipient restores the property if still held, otherwise its proceeds, or if none, its value at the time of transfer (§ 15-2-202).

The Elective Share

In Idaho, the surviving spouse’s elective right is tied to quasi-community property. It is limited to one-half of the total “augmented quasi-community property estate” (Idaho Code § 15-2-203(a)).

That total includes the property described in §§ 15-2-201 and 15-2-202, property the spouse received from the decedent and still owned at death, and certain property the spouse gave away during the marriage (§ 15-2-203(a)). It does not include federal social security benefits earned by the decedent’s service or disability (§ 15-2-203(a)). The share is reduced by an allocable portion of general administration expenses, homestead allowance, exempt property, and enforceable claims (§ 15-2-203(b)).

Property the spouse owned at death, or transferred, is presumed to have come from the decedent unless the spouse shows it came from another source (§ 15-2-203(c)).

How and When to Elect

The surviving spouse elects by filing a petition for the elective share in court and mailing or delivering it to the personal representative (Idaho Code § 15-2-205(a)). The deadline is nine months after the death or six months after the petition for probate was filed, whichever is later (§ 15-2-205(a)). The court may extend the time for cause shown by the spouse before the time runs out (§ 15-2-205(a)).

• The spouse must give notice of the hearing to persons interested in the estate and to recipients whose interests would be adversely affected (§ 15-2-205(b)).
• The spouse may withdraw the demand any time before the court’s final determination (§ 15-2-205(c)).
• After notice and hearing, the court determines the amount and orders payment (§ 15-2-205(d)).
• Only the spouse can make the election, during his or her lifetime. For a protected person, it requires a court order in the protective proceeding, after a finding that it is necessary for adequate support during the person’s probable life expectancy (Idaho Code § 15-2-204).

Electing does not by itself take away what the spouse receives under the will or by intestate succession, unless the spouse also expressly renounces those benefits in the petition (Idaho Code § 15-2-206(a)). Property passing to the spouse by will or intestate succession, and augmented estate property that has not been renounced, is applied first; the rest is equitably apportioned among will beneficiaries and transferees in proportion to their interests (Idaho Code § 15-2-207(a), (b)).

If a married person not domiciled in Idaho leaves a valid will disposing of Idaho real property that is not community property, the surviving spouse has the same right to elect against the will as if the property were in the decedent’s home state (Idaho Code § 15-2-209).

Spouses and Children Left Out of a Will

Omitted Spouse

If the testator married after signing the will and the will does not provide for the new spouse, the omitted spouse receives the same share he or she would have received if there were no will (Idaho Code § 15-2-301(a)). This does not apply if the will shows the omission was intentional, or if the testator provided for the spouse outside the will and intended that transfer to replace a will gift (§ 15-2-301(a)). That intent can be shown by the testator’s statements, the amount of the transfer, or other evidence (§ 15-2-301(a)).

Pretermitted (Omitted) Children

If the will does not provide for a child born or adopted after the will was signed, that child receives a share equal in value to what he or she would have received if the testator had died without a will (Idaho Code § 15-2-302(a)). The child does not receive this share if (§ 15-2-302(a)(1)-(3)):

• the will shows the omission was intentional;
• when the will was signed, the testator had one or more children and left substantially all of the estate to the omitted child’s other parent; or
• the testator provided for the child outside the will and intended that transfer to replace a will gift, as shown by the testator’s statements, the amount of the transfer, or other evidence.

A living child left out only because the testator believed the child was dead also receives an intestate-equivalent share (§ 15-2-302(b)). For both omitted spouses and omitted children, the will’s gifts are reduced in the order set out in Idaho Code § 15-3-902 (§§ 15-2-301(b), 15-2-302(c)). Intestate shares are explained in Dying Without a Will in Idaho.

Homestead Allowance and Exempt Property

These two rights apply to the estate of a decedent who dies domiciled in Idaho (Idaho Code § 15-2-401). For a decedent domiciled elsewhere, they are governed by the law of the decedent’s domicile at death (§ 15-2-401).

	Homestead allowance	Exempt property
Amount	$50,000 (§ 15-2-402)	Value up to $10,000 above any security interests, in tangible personal property such as household furniture, automobiles, furnishings, appliances, family heirlooms, and personal effects (§ 15-2-403)
Who is entitled	The surviving spouse; if none, each child under age 21 whom the decedent was obligated to support, and each disabled child (as provided in 42 U.S.C. § 1382c) the decedent was in fact supporting, shares equally (§ 15-2-402(a), (b))	The surviving spouse; if none, the decedent’s children jointly (§ 15-2-403)
Priority	Exempt from and has priority over all claims against the estate, except as the code otherwise provides (§ 15-2-402)	Priority over all claims against the estate (§ 15-2-403)
Relation to other shares	In addition to any share by will (unless the will provides otherwise), intestate succession, or elective share (§ 15-2-402)	In addition to any benefit by will (unless the will provides otherwise), intestate succession, or elective share (§ 15-2-403)

The homestead allowance is not a right to own or inherit the decedent’s home. It is only the right to claim the $50,000 sum (Idaho Code § 15-2-402).

These Rights Must Be Applied For

The homestead allowance and exempt property are not mandatory or automatic. They must be applied for by the surviving spouse and/or children, as appropriate (Idaho Code § 15-2-405). The manner of and time period for applying are the same as those set for creditor claims in Idaho Code §§ 15-3-801, 15-3-803, and 15-3-804 (§ 15-2-405); see Creditor Claims in Idaho Probate.

The personal representative is not required to give a surviving spouse or a minor or disabled child actual notice of the right to apply (§ 15-2-405). A creditor of the spouse or child, or anyone claiming through them, may not apply for these rights on their behalf (§ 15-2-405).

• The surviving spouse, the guardians of minor children, or adult children may select estate property to satisfy these rights. The personal representative may select if they are unable or fail to do so within a reasonable time, or if a minor child has no guardian (§ 15-2-405).
• If the estate is otherwise sufficient, specifically devised property may not be used to satisfy these rights (§ 15-2-405).
• The personal representative or any aggrieved interested person may petition the court for appropriate relief (§ 15-2-405).
• These rights do not take precedence over reasonable administrative costs and expenses of the estate (§ 15-2-405).

Limits by Will

A will may provide that a surviving spouse and/or adult children get no exempt property or homestead allowance, or only a limited amount (Idaho Code § 15-2-406(1), (2)). A will cannot do this for minor or disabled children, and it cannot condition the limit on whether the estate is subject to a Medicaid estate recovery claim (§ 15-2-406(3)).

A surviving spouse keeps these rights whether or not he or she takes the elective share (Idaho Code § 15-2-206(b)). However, if the will clearly shows a provision for the spouse was meant to replace these rights, the spouse is not entitled to them unless he or she renounces that will provision (§ 15-2-206(b)).

Waiving These Rights

The right of election, the homestead allowance, and exempt property may be waived, wholly or partly, before or after marriage. The waiver must be a written contract, agreement, or waiver signed by the person waiving, after fair disclosure (Idaho Code § 15-2-208).

Unless it says otherwise, a waiver of “all rights” (or similar language), or a complete property settlement made after or in anticipation of separation or divorce, waives all of these rights for each spouse (§ 15-2-208). It also renounces what each would receive from the other by intestate succession or under a will signed before the waiver or settlement (§ 15-2-208).

How I Can Help

I help surviving spouses and children understand which of these rights may apply to them and what deadlines they face, and I help personal representatives handle elective share petitions and homestead and exempt property applications. I also review premarital and property agreements for waiver language. Request a consultation to discuss your situation.

This page provides general information about Idaho wills and probate, based on the Idaho Code, and is not legal advice. Court rules and case law also affect these matters. Every situation is different; consult an attorney about yours. Reading this page does not create an attorney-client relationship.