Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult an attorney for advice tailored to your situation.
Detailed Answer
Under Arizona law, a surviving spouse who would inherit under intestacy has the right to elect a life estate in the decedent’s principal residence instead of taking an intestate share in fee simple. This option appears in Arizona Revised Statutes §14-2802.
Statutory Right to Elect a Life Estate
Arizona Revised Statutes §14-2802(A) grants a surviving spouse the right to elect a life estate in the decedent’s principal dwelling and an allowance in lieu of the exempt personal property allowance. By making this election, the spouse foregoes any other distribution under Article 2 (intestate succession) of Title 14. See ARS §14-2802.
Property That Qualifies
- Principal Dwelling: The home the decedent occupied as a primary residence at death.
- Value Limits: The life estate applies to the full value of the homestead up to statutory limits, subject to any liens or mortgages.
- Exempt Personal Property: Spouse also receives a personal property allowance instead of the standard exempt property list if the dwelling’s value exceeds the statutory personal property exemption.
Effect of the Election
- Life Estate: The spouse gains a present life estate in the homestead. The surviving spouse can live in and use the property for life.
- Remainder Interest: After the spouse’s death, the property passes to the decedent’s descendants or other intestate heirs.
- Waiver of Other Rights: By electing the life estate, the spouse waives any other intestate share under ARS §14-2101 and §14-2102.
When and How to Make the Election
- Time Frame: File the written election within six months after letters are issued to the personal representative or, if no representative is appointed, within six months after the first published notice to creditors. See ARS §14-2803.
- Filing Requirements: Record a signed statement of election with the probate court, the personal representative, and all beneficiaries.
- Valuation: Use the county assessor’s valuation as of the date of death to determine the property’s value.
Helpful Hints
- Confirm that the property qualifies as the decedent’s homestead before electing the life estate.
- Track the six-month deadline from the date of first letters or notice to avoid waiving your right.
- Consult the personal representative early to coordinate valuation and filing of the election.
- Keep copies of all filed documents and certificates of service to beneficiaries.
- Consider obtaining legal advice to ensure the election is properly executed and recorded.