Iowa Code » Chapter 633 — PROBATE CODE
Iowa Code

Iowa Code § 633.238 (2026)

Elective share of surviving spouse

✓ current as of July 2026
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1. The elective share of the surviving spouse shall be limited to all of the following: a. One-third in value of all the legal or equitable estates in real property possessed by the decedent at any time during the marriage which have not been sold on execution or other judicial sale, and to which the surviving spouse has made no express written relinquishment of right, including but not limited to any relinquishments of rights described in paragraph “d”. b. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution. c. One-third of all personal property of the decedent that is not necessary for the payment of debts and charges. d. (1) One-third in value of the property held in trust not necessary for the payment of debts and charges over which the decedent was a settlor and retained at the time of death the power to alter, amend, or revoke the trust, or over which the decedent waived or rescinded any such power within one year of the date of death, and to which the surviving spouse has not made any express written relinquishment in compliance with subparagraph (2). (2) The elective share of the surviving spouse shall not include the value of the property held in a trust described in subparagraph (1), if both of the following are true: (a) The decedent created the trust after the date of decedent’s marriage to the surviving spouse. (b) Every transfer of property into the trust, except for tangible personal property, included a written statement which complied with this subparagraph division. The written statement shall be in boldface type of a minimum size of ten points, signed and dated by the surviving spouse with a valid notarial acknowledgment, and in substantially the following form: By signing below, I acknowledge that I am giving up all rights to enjoyment of the property described above, regardless of whether or not I survive my spouse and regardless of any rights Iowa law otherwise gives to me with respect to such property. I am specifically waiving my elective share in the property described in this waiver. This waiver shall apply regardless of any changes made to the trust in the future, including any change to the beneficiaries of the trust. 2. When a settlor of a revocable trust transfers real property to the trustee of the revocable trust and the settlor’s spouse signs a conveyance of the real property to such trustee which includes a general waiver of rights of dower, homestead, and distributive share, the spouse is only relinquishing the right to that real property and its value under subsection 1, paragraph “a”, for the purpose of conveying marketable title to a subsequent purchaser from the trustee and is not relinquishing the right to the value of the real estate under subsection 1, paragraph “d”, unless the spouse specifically states in writing an intent to relinquish the right to the value of the real estate under subsection 1, paragraph “d”. The relinquishment of right under subsection 1, paragraph “a” shall not prevent the surviving spouse from electing one-third in value of such real property under subsection 1, paragraph “d”. 3. The elective share described in this section shall be in lieu of any property the spouse\n\nTue Dec 09 21:59:21 2025 Iowa Code 2026, Chapter 633 (154, 4) 55 PROBATE CODE, §633.242\n\nwould otherwise receive under the last will and testament of the decedent, through intestacy, or under the terms of a revocable trust. [C51, §1329, 1390, 1394, 1421; R60, §2361, 2422, 2477, 2479; C73, §2371, 2436, 2440; C97, §3312, 3362, 3366; C24, 27, 31, 35, 39, §11918, 11986, 11990, 11991; C46, 50, 54, 58, 62, §635.7, 636.1, 636.5, 636.6; C66, 71, 73, 75, 77, 79, 81, §633.238] 2005 Acts, ch 38, §14; 2009 Acts, ch 52, §4, 14; 2015 Acts, ch 125, §4, 7 Referred to in §614.14, 633.236, 633.237, 633.239, 633.240, 633.246

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Notes of Decisions
Cited in 31 cases (6 in the last 5 years), 1966–2026 · leading case: In the Matter of the Est. of Karen J. Myers, Rex A. Picken, 825 N.W.2d 1 (Iowa 2012).
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In the Matter of the Est. of Karen J. Myers, Rex A. Picken, 825 N.W.2d 1 (Iowa 2012). · cites it 69× “38, § 14); see also Iowa Code § 633.238 (l)(c() (Supp. 2005) (stating the surviving spouse’s elective share includes “[o]ne third in value of the property held in trust .”
Sieh v. Sieh, 713 N.W.2d 194 (Iowa 2006). · cites it 16× “Sieh, deceased, who has elected against his will, appeals from an order in probate refusing to include the assets of a revocable inter vivos trust created by Edward during his lifetime as property subject to Mary Jane’s statutory share under Iowa Code section 633.238 (2003). The…”
In the Matter of the Est. of Joseph C. Gantner III, Rachel Gantner, 893 N.W.2d 896 (Iowa 2017). · cites it 8× “Because the probate court relied on our decision in In re Estate of Myers, we will begin our discussion with that case.”
Amended July 31, 2015 In RE the Marriage of Susan Michelle Thatcher & Ronald Dean Thatcher Upon the Petition of Susan Michelle Thatcher, Anna Carson as for the Est. of Susan Michelle Thatcher, 864 N.W.2d 533 (Iowa 2015). · cites it 4× “Ronald’s resistance to Susan’s motion to bifurcate argued he would be prejudiced by the bifurcation, including loss of the right to file a joint tax return for 2013; possible loss of health and life insurance coverage; disinheritance; and loss of his right to claim his spousal…”
Velma J. Hussemann, by Her Next Friend & Attorney-In-Fact Marcella D. Ritter v. Herbert J. Hussemann Jr. & Robert J. Hussemann, as Trs. of the Herbert J. Hussemann Inter Vivos Trust Agreement, Dated June 3, 1991, 847 N.W.2d 219 (Iowa 2014). · cites it 6× “3 See Iowa Code § 633.238 (2011) (describing elective share of surviving *222 spouse).”
Freedom Fin. Bank v. Est. of Edward J. Boesen, 805 N.W.2d 802 (Iowa 2011). · cites it 2× “, Iowa Code §§ 633.238 (including assets in revocable trusts as part of the surviving spouse elective share as provided in UPC section 2-205, 2005 Iowa Acts ch.”
Matter of Est. of Wulf, 526 N.W.2d 154 (Iowa 1994). · cites it 4× “Lucille elected to take against the will and seek her statutory share pursuant to Iowa Code section 633.238 (1987). She challenged the final report of the executors on three grounds.”
Brenton Bank, N.A. v. Thompson, 512 N.W.2d 560 (Iowa 1994). · cites it 26× “Iowa Code § 633.238 (1987). The dispute in this case centers on the correct interpretation of subsection (3) of this statute.”
Matter of Est. of Wulf, 471 N.W.2d 850 (Iowa 1991). · cites it 2× “Lucille elected to take against the will of the decedent and receive her statutory share pursuant to Iowa Code section 633.238 (1987). Lucille claimed, however, in her objections to the final report, that she was entitled to receive outright an undivided one-half interest in the…”
Thomas v. Thomas, 454 N.W.2d 66 (Iowa Ct. App. 1990). · cites it 6× “Additionally, of course, Albert is entitled to those other funds which Iowa Code section 633.238 allows as the share of the surviving spouse who elects to take against the will.”
Bowman v. Bennett, 250 N.W.2d 47 (Iowa 1977). “See Code § 633.238; 2 Patton on Titles, § 593, at 529-536 (2d ed.”
In the Matter of the Est. of James Edwin Ibeling (Iowa 2026). · cites it 46× “Iowa Code § 633.238 (1)(d)(1). The guardian ad litem for the minor beneficiary, Harris, filed an application for a declaratory judgment seeking a declaration that the PIF assets 4 were not included in Nancy’s spousal share.”
Show all 31 citing cases →
— Iowa Code § 633.238(1) — 4 cases
In the Matter of the Est. of Karen J. Myers, Rex A. Picken, 825 N.W.2d 1 (Iowa 2012). “38, § 14); see also Iowa Code § 633.238 (l)(c() (Supp. 2005) (stating the surviving spouse’s elective share includes “[o]ne third in value of the property held in trust .”
In the Matter of the Est. of James Edwin Ibeling (Iowa Ct. App. 2025).
In the Matter of the Est. of James Edwin Ibeling (Iowa 2026). “Iowa Code § 633.238 (1)(d)(1). The guardian ad litem for the minor beneficiary, Harris, filed an application for a declaratory judgment seeking a declaration that the PIF assets 4 were not included in Nancy’s spousal share.”
In the Matter of the Est. of Eleanor Heemstra, Rodney Heemstra, Deanna James, & Marcie Wilkinson (Iowa Ct. App. 2017).
— Iowa Code § 633.238(1)(a) — 1 case
In the Matter of the Est. of Karl A. Kloster (Iowa Ct. App. 2021).
— Iowa Code § 633.238(1)(d) — 3 cases
In the Matter of the Est. of James Edwin Ibeling (Iowa Ct. App. 2025).
In the Matter of the Est. of James Edwin Ibeling (Iowa 2026). “Iowa Code § 633.238 (1)(d)(1). The guardian ad litem for the minor beneficiary, Harris, filed an application for a declaratory judgment seeking a declaration that the PIF assets 4 were not included in Nancy’s spousal share.”
Velma J. Hussemann, by Her Next Friend & Attorney-In-Fact Marcella D. Ritter v. Herbert J. Hussemann Jr. & Robert J. Hussemann, as Trs. of the Herbert J. Hussemann Inter Vivos Trust Agreement, Dated June 3, 1991 (Iowa 2014).
— Iowa Code § 633.238(1)(d)(1) — 1 case
In the Matter of the Est. of James Edwin Ibeling (Iowa 2026). “Iowa Code § 633.238 (1)(d)(1). The guardian ad litem for the minor beneficiary, Harris, filed an application for a declaratory judgment seeking a declaration that the PIF assets 4 were not included in Nancy’s spousal share.”
— Iowa Code § 633.238(1)(d)(2) — 1 case
In the Matter of the Est. of James Edwin Ibeling (Iowa 2026). “Iowa Code § 633.238 (1)(d)(1). The guardian ad litem for the minor beneficiary, Harris, filed an application for a declaratory judgment seeking a declaration that the PIF assets 4 were not included in Nancy’s spousal share.”
— Iowa Code § 633.238(2) — 3 cases
Matter of Est. of Spurgeon, 572 N.W.2d 595 (Iowa 1998).
Thomas v. Thomas, 454 N.W.2d 66 (Iowa Ct. App. 1990). “Additionally, of course, Albert is entitled to those other funds which Iowa Code section 633.238 allows as the share of the surviving spouse who elects to take against the will.”
In the Matter of the Est. of James Edwin Ibeling (Iowa 2026). “Iowa Code § 633.238 (1)(d)(1). The guardian ad litem for the minor beneficiary, Harris, filed an application for a declaratory judgment seeking a declaration that the PIF assets 4 were not included in Nancy’s spousal share.”
— Iowa Code § 633.238(3) — 1 case
Thomas v. Thomas, 454 N.W.2d 66 (Iowa Ct. App. 1990). “Additionally, of course, Albert is entitled to those other funds which Iowa Code section 633.238 allows as the share of the surviving spouse who elects to take against the will.”
— Iowa Code § 633.238(l)(c) — 1 case
In the Matter of the Est. of Karen J. Myers, Rex A. Picken, 825 N.W.2d 1 (Iowa 2012). “38, § 14); see also Iowa Code § 633.238 (l)(c() (Supp. 2005) (stating the surviving spouse’s elective share includes “[o]ne third in value of the property held in trust .”
— Iowa Code § 633.238(l)(d) — 2 cases
In the Matter of the Est. of Karen J. Myers, Rex A. Picken, 825 N.W.2d 1 (Iowa 2012). “38, § 14); see also Iowa Code § 633.238 (l)(c() (Supp. 2005) (stating the surviving spouse’s elective share includes “[o]ne third in value of the property held in trust .”
Velma J. Hussemann, by Her Next Friend & Attorney-In-Fact Marcella D. Ritter v. Herbert J. Hussemann Jr. & Robert J. Hussemann, as Trs. of the Herbert J. Hussemann Inter Vivos Trust Agreement, Dated June 3, 1991, 847 N.W.2d 219 (Iowa 2014). “3 See Iowa Code § 633.238 (2011) (describing elective share of surviving *222 spouse).”
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