Updated August 1, 2026. Quick answer: the spousal elective share is not a flat one-third, which is what most pages tell you. Under the Uniform Probate Code schedule it slides with the length of the marriage — from a supplemental amount only under one year, to 3% at one year, rising to 50% at fifteen years or more. And it is applied to the augmented estate, not the probate estate: a pool that deliberately reaches revocable trusts, payable-on-death accounts and life insurance, precisely so the elective share cannot be defeated by moving assets out of probate.
The calculator
The schedule, as the statute writes it
Quoted from Minn. Stat. §524.2-202(a), read from the Minnesota Legislature’s own site — one of the states that enacted the 1990 Uniform Probate Code schedule verbatim:
| Married to each other | Elective-share percentage |
|---|---|
| Less than 1 year | Supplemental amount only |
| 1 but less than 2 years | 3% |
| 2 but less than 3 years | 6% |
| 3 but less than 4 years | 9% |
| 4 but less than 5 years | 12% |
| 5 but less than 6 years | 15% |
| 6 but less than 7 years | 18% |
| 7 but less than 8 years | 21% |
| 8 but less than 9 years | 24% |
| 9 but less than 10 years | 27% |
| 10 but less than 11 years | 30% |
| 11 but less than 12 years | 34% |
| 12 but less than 13 years | 38% |
| 13 but less than 14 years | 42% |
| 14 but less than 15 years | 46% |
| 15 years or more | 50% |
Notice the shape: 3 percentage points per year to ten years, then 4 points per year to fifteen. A page quoting “one-third” is describing neither end of that.
The augmented estate is the part that decides cases
The percentage is the easy half. The pool it applies to is where elective-share fights actually happen, because the augmented estate is built specifically to be hard to shrink. It reaches beyond the probate estate into non-probate transfers — property in a revocable trust, payable-on-death and transfer-on-death accounts, life insurance and other beneficiary-designated assets — and it includes property the surviving spouse already owns. That last part surprises people: the survivor’s own assets count toward the pool the share is measured against.
The practical consequence is the one worth carrying: retitling assets to avoid probate does not avoid the elective share. If the plan was to leave a spouse out by moving everything into a trust or onto beneficiary forms, the augmented estate is the statute’s answer to that plan. A transfer-on-death deed is subject to the same logic, and whether one is even available where you live is a separate question with a verified answer.
Three different systems, and yours is one of them
This is where the generic articles go wrong, so be direct about it:
- 1990 UPC schedule — the elective-share percentage itself slides from 3% to 50% of the augmented estate. That is the version computed above and quoted from the statute.
- 2008 revised UPC — a different construction that reaches a similar place: the share is a flat 50%, but of the marital-property portion of the augmented estate, and it is that portion which slides with marriage length. The intermediate numbers do not match the 1990 schedule, so do not carry a figure from one into the other.
- Flat-fraction states — Pennsylvania, New Jersey, Florida and Ohio among them use a fixed fraction with no schedule at all. For those, marriage length does not change the percentage, and this calculator does not apply.
We verified the 1990 schedule from a state that enacted it. We have not verified each state’s version here, and we are not going to guess: look up your own state’s elective-share section before relying on any number, including this one.
Electing is a decision with a deadline
The election is not automatic. It has to be filed, within a statutory window that runs from the death or from the probate filing depending on the state, and missing it forfeits the right entirely. Under the Uniform Probate Code there is also a second, earlier cut-off that removes nonprobate transfers — the TOD deed, the POD accounts, the revocable trust — from the augmented estate altogether: the waiver rules and the one-year trap. The other clocks that start at a death are computed in the deadline calendar, and the order in which an estate actually has to be handled is mapped in the estate settlement roadmap. If there was no will at all, the elective share is not the right frame — intestacy is, and the blended-family split is where that most often goes wrong.
General information, not legal advice. The elective share is state law, the deadlines are short, and this is a decision worth an attorney.
The number that surprises people who bought a long time ago
Downsizing is the one home sale where the gain is usually large and the exclusion usually still covers it. A couple who bought in 1994 for $180,000 and sell at $760,000 with $46,000 of selling costs have a realized gain of about $534,000 before improvements. That is above the $500,000 joint cap — but decades of capital improvements are exactly what brings it back under, and most sellers have never added them up.
Improvements are the lever, and the records are the constraint
A new roof, an addition, a replaced HVAC system, new windows, a finished basement: these add to basis. Repainting and repairs do not. Thirty years of improvements on a family home routinely total six figures, and every dollar of it reduces the gain dollar for dollar. The practical problem is documentary, not legal — the seller who kept receipts pays less than the identical seller who did not.
Why downsizers should check the net investment income tax separately
A retiree with modest ordinary income can still be pushed over the 3.8 percent NIIT threshold by the sale itself, because taxable gain is net investment income. The thresholds are $250,000 on a joint return and $200,000 otherwise, written into Section 1411(b) as fixed figures with no indexing. A sale that produces $120,000 of taxable gain on top of $180,000 of other income crosses the joint threshold and picks up 3.8 percent on the part above it.
The move itself may change the tax
Downsizing usually means moving, and sometimes across a state line. Some states tax the gain the federal exclusion just removed. If the sale and the move are in the same year, the order of the two matters, and it is worth checking the destination state before signing.
Related
Methodology
- Exclusion caps, the 2-of-5 test, the nonqualified-use allocation, the reduced-exclusion fraction and the depreciation carve-out are taken from the text of 26 U.S.C. 121. The 3.8 percent rate and its thresholds are from 26 U.S.C. 1411. Both were read on 2026-07-30.
- Section 121 caps and Section 1411 thresholds are written in the statute as fixed dollar amounts with no indexing mechanism, so they are built in. Long-term capital gain brackets ARE indexed annually, so your rate is an input rather than a lookup.
- Figures were computed by two independently written engines that agree to the cent, and the calculator on this page reproduces both exactly.
- Federal only. State treatment varies and some states do not follow the federal exclusion.
Educational estimate, not tax advice, and not a filed return. Federal only. Confirm anything that changes a filing decision with a CPA or tax attorney.
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Remarriage changes this by operation of law: a workplace plan pays your current spouse unless that spouse signs a witnessed consent — a prenup cannot do it, and a previous spouse’s consent does not carry over. Your IRA, meanwhile, still pays whoever is on the form.