Sarah Ingles, REALTOR® SRES® · Fathom Realty
If you've been disinherited by a spouse's will — or if you're an executor administering an estate where the surviving spouse got less than the statute provides — you need to understand Iowa's spousal elective share. This is one of the most powerful (and most misunderstood) protections in Iowa probate law.
> Disclosure: General education, not legal advice. Iowa elective share cases are time-sensitive and technical. Consult an Iowa probate attorney before acting.
Iowa Code § 633.236 through § 633.246 gives a surviving spouse the right to "elect against the will" — meaning the surviving spouse can refuse what the will leaves them and instead take a statutory share of the estate. This prevents a spouse from being disinherited entirely, even if the will explicitly tries to do so.
The Iowa elective share typically consists of:
1. One-third of the decedent's real property held in their name alone 2. One-third of the decedent's personal property after debts are paid 3. A life estate or one-third interest in the homestead (the family home) 4. Exempt personal property (household goods, vehicles up to a threshold)
Exact percentages and categories depend on whether the marriage has children from prior relationships and other factors.
The elective share only matters when:
Iowa requires the surviving spouse to file a formal election within:
Miss the deadline and you're stuck with what the will says. This is one of the most time-sensitive probate deadlines in Iowa.
1. The spouse reviews the will and confirms they received less than the statute allows 2. The spouse files a formal election with the probate court 3. The estate is recomputed with the spouse taking the statutory share instead of what the will provided 4. The remaining heirs/beneficiaries split the rest per the will's terms
This can significantly change who inherits what — especially when a decedent tried to leave most of the estate to children from a prior marriage.
The family home gets special treatment. Even if the will leaves the house to someone else, the surviving spouse generally has a right to:
1. Continue living in the home for life (a life estate), OR 2. Take a one-third ownership interest in the home, OR 3. Receive cash equal to one-third of the home's value at the spouse's election
This is why many Iowa gray divorce and blended-family estates end up with contested homestead situations. The surviving spouse may not want to sell — but the children from a prior marriage want their inheritance in cash.
The elective share cannot usually be waived except through a valid prenuptial or postnuptial agreement. Legitimate planning strategies include:
1. Prenuptial agreements that waive the elective share (must be valid under Iowa law — voluntary, with full disclosure, and with independent counsel) 2. Joint ownership with right of survivorship on the home — the home passes outside probate to the surviving spouse automatically 3. Transfer-on-death deeds to children (but these may still be subject to the spousal elective share claim) 4. Revocable living trusts with careful structuring (though Iowa courts have ruled that certain trust assets can still be reached by the elective share)
Iowa's elective share most often matters in blended families:
This is a predictable source of family conflict. Good estate planning addresses it explicitly through prenuptial agreements or trust structures — not by quietly trying to disinherit the spouse.
As a probate REALTOR® in the Des Moines metro, I regularly work with estates where the elective share affects real property:
Q: Can a spouse be disinherited in Iowa? A: Not completely. Iowa law provides the surviving spouse with a "spousal elective share" — the right to take a statutory portion of the estate (typically one-third plus homestead rights) regardless of what the will says. The spouse must file a formal election within 4 months to exercise this right.
Q: How much does a surviving spouse get in Iowa probate? A: Under the Iowa elective share, the surviving spouse is entitled to one-third of real property, one-third of personal property, and homestead rights in the family home. Exact amounts vary depending on whether there are children from prior relationships and other factors.
Q: Can a prenup waive the Iowa elective share? A: Yes, if the prenuptial agreement is valid under Iowa law — meaning it was signed voluntarily, with full financial disclosure, and ideally with independent legal counsel for both parties. Invalid or unconscionable prenups won't be enforced.
Q: Does the Iowa elective share apply to trust assets? A: Iowa courts have addressed this repeatedly. Assets in a revocable living trust can sometimes be reached by the elective share, depending on the specific trust structure and timing. This is a common area of litigation and requires an Iowa probate attorney.
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