Tip – It’s a good idea to understand Idaho’s Spousal Rights Laws.
If you’re entering a second marriage later in life, it’s crucial to understand how Idaho’s spousal rights could impact your estate planning goals. Under Idaho law, your surviving spouse has significant automatic rights to your estate:
- Homestead Allowance (Idaho Code 15-2-402): Your surviving spouse is entitled to a $50,000 homestead allowance that takes priority over most other claims against your estate
- Exempt Property (Idaho Code 15-2-403): Your surviving spouse can claim up to $10,000 worth of tangible personal property including household furniture, automobiles, furnishings, appliances, family heirlooms, and personal effects
- Share of estate to Spouse (Idaho Code 15-2-102): If there is no will, your surviving spouse will receive the following from your estate: a. As to separate property: If there are surviving issue of the deceased spouse, one half of the intestate estate b. As to community property: the one-half of the community property which belongs to the decedent, passes to the surviving spouse
The Problem in Second Marriages
These rights exist regardless of how long you have been married. This means that even in a brief second marriage, your new spouse could claim up to $60,000 from your estate, potentially disrupting your plans to leave assets to your children from your first marriage or other intended beneficiaries.
For example, if you remarry and then pass away after just one year of marriage, your new spouse could still claim the full homestead allowance and exempt property rights, even though you may have intended for your estate to go primarily to your children from your previous marriage.
The Solution: Proper Planning
There are two key strategies to address this concern:
- Draft a comprehensive will that clearly outlines your estate distribution wishes
- Execute a waiver agreement under Idaho Code 15-2-208
How the Waiver Works
Idaho Code 15-2-208 allows spouses to waive their rights to the homestead allowance and exempt property through “a written contract, agreement, or waiver signed by the party waiving after fair disclosure”. This waiver can be executed either before or after marriage. Or in your will, you can state that your spouse is exempt from the Homestead Allowance.
Key Benefits of Planning Ahead
- Protects your intended estate distribution
- Provides clarity for your heirs
- Prevents potential family conflicts after your death
- Ensures your new spouse understands and agrees to your estate plans Important Considerations
- These allowances are not automatic—they must be applied for by the surviving spouse, but it’s best not to rely on this
- The waiver must include “fair disclosure” of what rights are being waived
- Consider having both spouses execute mutual waivers for complete protection
- Consult with an Idaho estate planning attorney to ensure proper documentation
Recommendations
It’s a good idea not to procrastinate these important decisions. Some people intend to do it but never get around to it, and some procrastinate because they don’t want to spend the money. Children can become angry or hurt when they don’t receive something they expected to inherit from their parent.
Before entering a second marriage, especially later in life, discuss estate planning openly with your future spouse and consider executing appropriate waivers. This isn’t about mistrust—it’s about ensuring both parties understand and respect each other’s wishes for their respective estates.
Remember: A few hours spent with an estate planning attorney now can save your
heirs months of complications and thousands of dollars in legal fees later.
View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law – with you for life!
Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.
May 2025