Rhode Island Elective Share: What a Surviving Spouse Is Entitled To

If your spouse dies and leaves you nothing — or less than you expected — Rhode Island law gives you the right to reject the will and claim a statutory minimum. This is the elective share, codified under RIGL § 33-28-1.

It exists to prevent spousal disinheritance. But Rhode Island's version has an unusual loophole that makes it one of the weakest spousal protections in the country.

What the Elective Share Includes

A surviving spouse who elects against the will receives:

Real property: A life estate in all individually held real property the deceased spouse owned at death. This means you can live in or collect income from the property for the rest of your life, but you do not own it outright — when you die, it passes to the beneficiaries named in the will.

Personal property: The share you would have received under intestacy — 50% of the surplus personal probate estate if the deceased spouse had children, or the first $50,000 plus 50% of the remainder if there were no children.

How to Elect

The surviving spouse must file a written petition with the municipal probate court within six months of the first publication of the fiduciary's qualification notice. If the deceased owned real property in multiple municipalities, the election must also be recorded in the land evidence records of each town.

Missing this deadline waives the right permanently.

The Trust Loophole

Here is what makes Rhode Island unusual: the elective share only reaches probate assets. Under Rhode Island case law, assets held in a revocable living trust are excluded from the probate estate.

This means a spouse can transfer the family home, bank accounts, and investments into a revocable trust during their lifetime — and the surviving spouse has no claim to any of it. The elective share only applies to property the deceased still held in their individual name at death.

In practice, a well-funded revocable trust can completely bypass the spousal elective share. Rhode Island remains one of the easiest states in which to disinherit a surviving spouse.

Waiving the Elective Share

Spouses can waive the elective share, in whole or in part, by a signed written agreement under § 33-28-3. Prenuptial and postnuptial agreements that waive the elective share are enforceable in Rhode Island without consideration, as long as:

• The waiver was signed voluntarily
• The spouse was given fair and reasonable disclosure of the other spouse's financial situation

Courts will not enforce a waiver if the signing spouse was coerced or kept in the dark about the value of the estate.

Planning Implications

If you want to protect your spouse: Make sure significant assets are titled in your individual name or held in an account with a beneficiary designation naming your spouse directly. A will that leaves everything to your spouse works — but only if the assets are actually in your probate estate.

If you are in a second marriage: The trust loophole allows you to protect children from a prior marriage by moving assets into a revocable trust. Combined with a prenuptial agreement waiving the elective share, this is a common strategy for blended families in Rhode Island.

If you are the surviving spouse: Act within six months. If you suspect your spouse transferred assets into a trust to avoid the elective share, consult an attorney immediately — there may be equitable remedies depending on the timing and circumstances of the transfers.

The Rhode Island Basic Estate Planning Kit includes a spousal rights overview and estate planning worksheets that help you structure your plan around these rules — whether your goal is protecting your spouse or protecting children from a prior relationship.

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