Like most separate property states, Mississippi probate law has built-in protections for the spouse and family of a deceased person. These protections have their roots in an earlier time, when most families had only one wage earner. But the same policy applies today: a person should not be allowed to leave his or her spouse destitute.
Mississippi Homestead Exemption
Under the Mississippi homestead exemption statute, the spouse has an absolute right to use and occupy the marital home (homestead) as long as he or she remains unmarried. If the spouse renounces (or is deemed to renounce) the will, the spouse will take an undivided ownership interest in the homestead in the same manner that he or she would in other property owned by the decedent.
The Mississippi homestead exemption law provides strong protection for surviving spouses. Mississippi courts have held that a person cannot defeat a spouse’s right to occupy homestead property by leaving it to someone else. So even if the spouse does not have a legal ownership interest in the marital home, he or she will be entitled to exclusive use and possession.
Homestead property is generally not subject to debts of a decedent who dies intestate and is survived by a spouse and/or descendants or leaves it to his spouse or children by will (although this would not prevent a lender from foreclosing on a mortgage). But if the decedent devises the homestead property to someone other than a spouse or descendant and is not survived by a spouse or descendants, the property is subject to the claims of creditors.
The Mississippi Elective Share
If a person’s will provides for his or her spouse, the court will usually assume that the spouse has been taken care of. But there are important exceptions, the most significant of which is Mississippi’s elective share statute. Under this law, a surviving spouse is allowed to “renounce” the provision for the spouse under the decedent’s will and instead claim a different portion of the decedent’s estate. If the will makes no provision for the spouse, the spouse is deemed to have renounced the will, without the need for any affirmative action by the spouse.
The share that the spouse is entitled to claim is known as the elective share. It is calculated in a manner that reduces the amount the spouse is entitled to receive by the size of the spouse’s own assets. The following procedure is used to determine the surviving spouse’s share:
- Determine the value of the deceased spouse’s net estate. This will include all property passing under the will, less debts, expenses of administration, estate taxes, and funeral bills.
- Determine the spouse’s legal share. The legal share is the fractional share of the decedent’s estate that the spouse would have taken if the deceased spouse had died intestate, capped at one-half. Under this rule, the spouse is generally entitled to one-half of the decedent’s estate if the decedent left no children or one child. If the decedent left more than one child, the spouse is generally entitled to a child’s share. For example, if a man left a wife and two children, the wife would be entitled to one-third and the two children would each be entitled to one-third.
- Multiply the amount determined in Step 1 by the amount determined in Step 2.
- Determine the net value of the spouse’s net estate. This will include the value of all property owned by the spouse at the decedent’s death less any debts of the surviving spouse. The issue of what is included in the spouse’s separate estate turns on whether the spouse had rights in the property, vested by contract, before the decedent’s death. The spouse’s separate estate will include all property owned in joint tenancy with the decedent, life insurance proceeds on the decedent’s life under the terms of the policy. Property inherited from the decedent through Mississippi intestate law (if the will did not dispose of all of the assets) and homestead rights are not considered part of the spouse’s estate.
- Subtract the amount determined in Step 4 from the amount determined in Step 3 to arrive at the amount of the decedent’s estate to which the spouse is entitled (the “legal share”). The spouse is not obligated to accept this amount in money (i.e., the spouse can claim an interest in specific assets).
There is a rule of administrative convenience that can simplify the calculation of the spouse’s separate share: If the spouse has a separate estate that is worth less than one-fifth of the decedent’s estate (or has no separate estate at all), the spouse is entitled to the full legal share. The purpose of this “one-fifth rule” is to avoid the necessity of appraisal of the spouse’s estate if it is obviously negligible. If the value of the spouse’s separate estate equals or exceeds the legal share, the spouse will take nothing other than what was provided in the will, if anything. If the spouse’s separate estate exceeds one-fifth of the decedent’s estate but is less than the legal share, the spouse is entitled to the difference.
The Spouse’s Allowance
If a decedent leaves a surviving spouse and/or children who were being supported by the decedent, the surviving spouse and/or children are entitled to as much of the decedent’s estate as is necessary to comfortably support them, to enable them to buy clothes, and to pay the children’s tuition for one year. This claim, known as the “spouse’s allowance,” is a high priority claim that must be paid, even if the estate is insolvent. No direct or formal proceeding is necessary to pay the spouse’s allowance.
So how much is the spouse’s allowance? There’s no clear answer. It is up to the chancery court to determine the amount, depending on the value of the estate, the rights of others in the estate assets, the dependent’s standard of living, and their specific life circumstances. This spouse’s allowance does not reduce the spouse’s inheritance from the estate.