As a surviving spouse in Alabama, you are entitled to a share of your late spouse’s estate no matter what the will says. Alabama surviving spouse rights include an intestate share when there’s no will, an elective share that overrides a will that leaves you out, three statutory allowances that come off the top of the estate before most creditors are paid, continued rights in the marital home, and a set of federal protections covering taxes, Social Security, VA benefits, and retirement accounts.
What You Inherit if There’s No Will
When an Alabama resident dies without a valid will, probate assets pass through intestate succession under Title 43, Chapter 8 of the Alabama Code.1Alabama Legislature. Alabama Code 43-8-40 – Disposition of Intestate Estate What you receive depends on who else survived your spouse.2Alabama Legislature. Alabama Code 43-8-41 – Share of the Spouse
- No surviving descendants and no surviving parents: you inherit the entire intestate estate.
- Surviving parents but no descendants: you receive the first $100,000, plus half of the remaining balance. The parents split the other half.
- Descendants who are also your descendants: you receive the first $50,000, plus half of the remaining balance. The descendants divide the other half.
- Descendants who are not your descendants (for example, children from your spouse’s earlier marriage): you receive half of the intestate estate, and the descendants divide the other half.
One important limit: intestate succession only reaches probate assets, meaning property titled solely in the decedent’s name with no beneficiary designation. Life insurance, retirement accounts with a named beneficiary, payable-on-death bank accounts, transfer-on-death brokerage accounts, and jointly titled property pass directly to the named beneficiary or co-owner. Those assets are not part of the intestate calculation.
Claiming an Elective Share Against the Will
A will cannot completely disinherit you in Alabama. If your spouse left a will that gives you little or nothing, you can dissent from its terms and claim an elective share instead. Alabama abolished common-law dower and curtesy and replaced them with this statutory election.3Alabama Legislature. Alabama Code 43-8-57 – Dower and Curtesy Abolished
The elective share equals the smaller of two amounts:4Alabama Legislature. Alabama Code 43-8-70 – Right of Surviving Spouse to Elective Share
- One-third of your deceased spouse’s estate, or
- The entire estate minus the value of your own separate estate.
Your separate estate includes everything you own outright after the death, beneficial interests in trusts, life insurance proceeds on your spouse’s life, and benefits under employer pension or profit-sharing plans. In practice, a surviving spouse with substantial assets of their own will be limited by the second calculation, while a spouse with little of their own will hit the one-third cap.
The deadline is strict. You must file a petition with the probate court within six months after the date of death or six months after the will is admitted to probate, whichever is later.5Justia. Alabama Code 43-8-73 – Procedure for Making Election; Petition; Time Limit Miss it and the right is gone. A court can extend the period only for good cause shown before it expires.
The Three Statutory Allowances
Separate from anything you inherit through a will, intestacy, or the elective share, Alabama gives you three allowances paid off the top of the estate. Together they take priority over almost all creditor claims.
Homestead Allowance
You are entitled to a $15,000 homestead allowance, paid in cash or equivalent property from the estate, exempt from and prior to all claims against the estate.6Alabama Legislature. Alabama Code 43-8-110 – Homestead Allowance This is not the same as the constitutional homestead exemption that protects the house itself from creditors.
Exempt Property
You can also claim up to $7,500 worth of household furniture, automobiles, appliances, and personal effects. If the estate doesn’t contain that much in those categories, you can make up the difference from other estate assets.7Alabama Legislature. Alabama Code 43-8-111 – Exempt Property
Family Allowance
The family allowance covers reasonable day-to-day living expenses while the estate is being administered. It can be paid as a lump sum or in installments. If the estate lacks enough assets to pay outstanding debts, the family allowance cannot continue beyond one year. It is exempt from creditors’ claims but ranks below the homestead allowance in priority.8Alabama Legislature. Alabama Code 43-8-112 – Family Allowance
Staying in the Marital Home
The Alabama Constitution provides a homestead exemption that shields the family residence from being sold to satisfy the decedent’s debts. Under Article X, Section 205, a homestead of up to 80 acres outside a city, or a city lot valued up to $2,000, is exempt from court-ordered sale for debt collection. Section 208 extends that protection to the surviving spouse after the owner’s death. Those dollar figures have not been updated since they were written into the constitution, so the practical protection is thin for higher-value homes.
If the home carries a mortgage, federal law helps. The Garn-St. Germain Act bars a lender from calling the loan due simply because the property passed to the surviving spouse after the borrower’s death, as long as the home has fewer than five dwelling units.9Office of the Law Revision Counsel. 12 U.S. Code 1701j-3 – Preemption of Due-on-Sale Prohibitions You keep making the regular payments under the existing loan terms.
When These Rights Don’t Apply
Two situations can wipe out spousal rights before you ever reach probate.
The first is a written waiver. Alabama allows a spouse to give up the elective share, the three allowances, and other rights through a written agreement signed after fair disclosure of each spouse’s finances, either before or after the marriage.10Alabama Legislature. Alabama Code 43-8-72 – Waiver of Right to Elect and of Other Rights A waiver of “all rights” in a spouse’s property, or a complete property settlement made during separation or in anticipation of divorce, operates as a waiver of every spousal right under the probate code, including intestate succession and benefits under a will executed before the waiver. A prenuptial or postnuptial agreement with broad property-waiver language often eliminates spousal estate rights even without using the word “probate.”
The second is divorce. A finalized divorce automatically revokes any provisions in the will that benefited the former spouse; the former spouse is treated as if they predeceased the decedent, and they also lose intestate succession, the elective share, and the statutory allowances.11Justia. Alabama Code 43-8-137 – Revocation by Divorce or Annulment Separation without a final decree does not. If the couple later remarries each other, the revoked provisions come back into effect.
Federal Tax Benefits
Filing Status
For the tax year in which your spouse died, you can file a joint return. For the following two tax years, you may use the Qualifying Surviving Spouse filing status, which keeps the joint-return standard deduction and tax brackets. You must have a dependent child living in the home, must have been entitled to file jointly in the year of death, and must not have remarried before the end of the tax year.12Internal Revenue Service. Qualifying Surviving Spouse Filing Status
Estate Tax Portability
For 2026, the federal estate tax exemption is $15,000,000 per person.13Internal Revenue Service. What’s New – Estate and Gift Tax If your spouse didn’t use their full exemption, you can claim the unused portion by filing a portability election on IRS Form 706. Form 706 is normally due nine months after the date of death, with a six-month extension available. For estates below the filing threshold that need to file only to elect portability, Revenue Procedure 2022-32 allows a complete Form 706 to be filed within five years of the date of death with a notation that it is filed to elect portability.14Internal Revenue Service. Frequently Asked Questions on Estate Taxes Skip this step and the unused exemption is lost permanently.
Step-Up in Basis
Property you inherit from your spouse generally receives a new tax basis equal to its fair market value on the date of death.15Office of the Law Revision Counsel. 26 U.S. Code 1014 – Basis of Property Acquired From a Decedent If your spouse bought a house for $150,000 and it was worth $400,000 at death, your basis resets to $400,000. Selling shortly afterward for that amount produces no capital gains tax.
Social Security and VA Survivor Benefits
You may qualify for Social Security survivor benefits if you were married to the deceased for at least nine months before the death and are at least 60 (or 50 with a qualifying disability). A surviving spouse caring for the deceased’s child under 16 qualifies regardless of age or length of marriage.16Social Security Administration. Who Can Get Survivor Benefits Remarriage before age 60 (or 50 if disabled) disqualifies you; remarriage after those ages does not. A one-time lump-sum death payment of $255 is also available and must be claimed within two years of the death.17Social Security Administration. Lump-Sum Death Payment
If your spouse was a veteran who died from a service-connected condition or while on active duty, you may qualify for Dependency and Indemnity Compensation, a monthly VA benefit. Eligibility generally requires that the couple was married for at least one year, had a child together, or married within 15 years of the veteran’s discharge.18Veterans Benefits. Dependency and Indemnity Compensation Surviving spouses who remarry after age 55 can still receive DIC.
Retirement Account Protections
Federal law gives you protections over retirement accounts that state probate rules cannot override. Under ERISA, most 401(k) plans and other employer-sponsored defined contribution plans must name the surviving spouse as the default beneficiary. If the account holder wanted to name someone else, the spouse had to consent in writing, witnessed by a notary or plan representative.19U.S. Department of Labor. FAQs About Retirement Plans and ERISA Without a valid spousal waiver, you are entitled to the account balance regardless of what any beneficiary form or will says.
A surviving spouse who inherits an IRA has options no other beneficiary gets. You can roll the inherited IRA into your own IRA and treat it as your own, delaying required distributions until your own required beginning date. Or you can keep it as an inherited IRA and take distributions based on your own life expectancy. Most non-spouse beneficiaries are locked into a 10-year withdrawal window that forces faster payouts and larger tax bills.20Internal Revenue Service. Retirement Topics – Beneficiary