72-2-239. Sources from which elective share payable. (1) In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:

(a) amounts included in the augmented estate under 72-2-234 which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under 72-2-236;

(b) amounts included in the augmented estate that would have passed to the spouse but were disclaimed; and

(c) the marital-property portion of amounts included in the augmented estate under 72-2-237.

(2) The marital-property portion under subsection (1)(c) is computed by multiplying the value of the amounts included in the augmented estate under 72-2-237 by the percentage of the augmented estate set forth in the schedule in 72-2-233(2) appropriate to the length of time the spouse and the decedent were married to each other.

(3) If, after the application of subsection (1), the elective-share amount is not fully satisfied, or the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent's net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent's nonprobate transfers to others under 72-2-235(1) and (2) are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent's net probate estate and that portion of the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is apportioned among the recipients of the decedent's net probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests.

(4) If, after the application of subsections (1) and (3), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is apportioned among the recipients of the remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

(5) The unsatisfied balance of the elective-share or supplemental elective-share amount as determined under subsection (3) or (4) is treated as a general pecuniary devise for purposes of 72-3-913.

History: En. Sec. 21, Ch. 313, L. 2019.