SECTION 2-102. SHARE OF SPOUSE. Uniform Probate Code

SECTION 2-102. SHARE OF SPOUSE. Uniform Probate Code
The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(A) no descendant or parent of the decedent survives the decedent; or

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(B) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first [$300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) the first [$225,000], plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(4) the first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
Comment
Purpose and Scope of 1990 Revisions. This section was revised in 1990 to give the surviving spouse a larger share than the pre-1990 UPC. If the decedent leaves no surviving descendants and no surviving parent or if the decedent does leave surviving descendants but neither the decedent nor the surviving spouse has other descendants, the surviving spouse is entitled to all of the decedent’s intestate estate.
If the decedent leaves no surviving descendants but does leave a surviving parent, the decedent’s surviving spouse receives the first $300,000 plus three-fourths of the balance of the intestate estate.
If the decedent leaves surviving descendants and if the surviving spouse (but not the decedent) has other descendants, and thus the decedent’s descendants are unlikely to be the exclusive beneficiaries of the surviving spouse’s estate, the surviving spouse receives the first $225,000 plus one-half of the balance of the intestate estate. The purpose is to assure the decedent’s own descendants of a share in the decedent’s intestate estate when the estate exceeds $225,000.
If the decedent has other descendants, the surviving spouse receives $150,000 plus one- half of the balance. In this type of case, the decedent’s descendants who are not descendants of the surviving spouse are not natural objects of the bounty of the surviving spouse.
Note that in all the cases where the surviving spouse receives a lump sum plus a fraction

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of the balance, the lump sums must be understood to be in addition to the probate exemptions and allowances to which the surviving spouse is entitled under Part 4. These can add up to a minimum of $64,500.
Under the pre-1990 Code, the decedent’s surviving spouse received the entire intestate estate only if there were neither surviving descendants nor parents. If there were surviving descendants, the descendants took one-half of the balance of the estate in excess of $50,000 (for example, $25,000 in a $100,000 estate). If there were no surviving descendants, but there was a surviving parent or parents, the parent or parents took that one-half of the balance in excess of $50,000.
2008 Cost-of-Living Adjustments. As revised in 1990, the dollar amount in paragraph (2) was $200,000, in paragraph (3) was $150,000, and in paragraph (4) was $100,000. To adjust for inflation, these amounts were increased in 2008 to $300,000, $225,000, and $150,000 respectively. The dollar amounts in these paragraphs are subject to annual cost-of-living adjustments under Section 1-109.
References. The theory of this section is discussed in Waggoner, “The Multiple- Marriage Society and Spousal Rights Under the Revised Uniform Probate Code,” 76 Iowa L. Rev. 223, 229-35 (1991).
Empirical studies support the increase in the surviving spouse’s intestate share, reflected in the revisions of this section. The studies have shown that testators in smaller estates (which intestate estates overwhelmingly tend to be) tend to devise their entire estates to their surviving spouses, even when the couple has children. See C. Shammas, M. Salmon & M. Bahlin, Inheritance in America from Colonial Times to the Present 184-85 (1987); M. Sussman, J. Cates & D. Smith, The Family and Inheritance (1970); Browder, “Recent Patterns of Testate Succession in the United States and England,” 67 Mich. L. Rev. 1303, 1307-08 (1969); Dunham, “The Method, Process and Frequency of Wealth Transmission at Death,” 30 U. Chi. L. Rev. 241, 252 (1963); Gibson, “Inheritance of Community Property in Texas – A Need for Reform,” 47 Texas L. Rev. 359, 364-66 (1969); Price, “The Transmission of Wealth at Death in a Community Property Jurisdiction,” 50 Wash. L. Rev. 277, 283, 311-17 (1975). See also Fellows, Simon & Rau, “Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States,” 1978 Am. B. F. Research J. 319, 355-68; Note, “A Comparison of Iowans’ Dispositive Preferences with Selected Provisions of the Iowa and Uniform Probate Codes,” 63 Iowa L. Rev. 1041, 1091-92 (1978).
Cross Reference. See Section 2-802 for the definition of spouse, which controls for purposes of intestate succession.
Historical Note. This Comment was revised in 2008.

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[ALTERNATIVE PROVISION FOR COMMUNITY PROPERTY STATES] [SECTION 2-102A. SHARE OF SPOUSE.
(a) The intestate share of a decedent’s surviving spouse in separate property is:
(1) the entire intestate estate if:
(A) no descendant or parent of the decedent survives the decedent; or
(B) all of the decedent’s surviving descendants are also descendants of the
surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first [$300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) the first [$225,000], plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(4) the first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
(b) the one-half of community property belonging to the decedent passes to the [surviving spouse] as the intestate share.]
Comment
The brackets around the term “surviving spouse” in subsection (b) indicate that states are free to adopt a different scheme for the distribution of the decedent’s half of the community property, as some community property states have done.
2008 Cost-of-Living Adjustments. As revised in 1990, the dollar amount in subsection

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(a)(2) was $200,000, in (a)(3) was $150,000, and in (a)(4) was $100,000. To adjust for inflation, these amounts were increased in 2008 to $300,000, $225,000, and $150,000 respectively. The dollar amounts in these paragraphs are subject to annual cost-of-living adjustments under Section 1-109.
Historical Note. This Comment was revised in 2008.