Yes, a spouse can contest a will, but that’s usually the second-best tool available. A surviving spouse has two separate legal paths: a formal will contest challenging the document’s validity, and a statutory right of election that lets you claim a fixed share of the estate no matter what the will says. The election is faster, cheaper, and doesn’t require proving anything was wrong with the will. A contest is what you turn to when the will itself is legally flawed.
Start With the Right of Election
Before thinking about a lawsuit, look at the spousal right of election. This lets you reject whatever the will leaves you and instead take a fixed share of the estate set by state law. The rule exists specifically to prevent one spouse from disinheriting the other, and it works even when the will is perfectly valid. You don’t have to prove undue influence, incapacity, or anything else. You just have to file on time.
The share varies by state. Some set a flat fraction, traditionally one-third of the estate. Others follow the Uniform Probate Code, which uses a sliding scale tied to the length of the marriage: a short marriage yields a smaller percentage, while a spouse married fifteen years or more can claim up to fifty percent of what the UPC calls the augmented estate.
That “augmented estate” idea matters. Instead of counting only assets that pass through probate, it also pulls in property the deceased moved into trusts, joint accounts, payable-on-death arrangements, and similar transfers made during the marriage. The point is to prevent an end-run: a spouse can’t quietly retitle everything outside the will and then leave the will empty.
To exercise the election, you file a petition with the probate court. It’s a procedural step with a hard deadline, not a lawsuit.
Community Property States Work Differently
The elective share is a common-law property rule. In the nine community property states, you already own half of everything acquired during the marriage. The will can only reach the deceased spouse’s separate property and their half of the community assets. If the will tries to give away your half, that provision is unenforceable. You don’t need to elect anything; you already own it.
Protections That Kick In Automatically
Several other rights operate independently of the will and don’t require any kind of challenge:
- Family allowance. Many states let the surviving spouse draw a reasonable allowance from the estate for living expenses during probate, paid off the top before debts and bequests.
- Exempt property. A set amount of personal property or household goods the surviving spouse can claim regardless of what the will says.
- Homestead protection. In some states, the surviving spouse has the right to remain in the family home, at least for a time, even if the will directs the property elsewhere.
These vary widely by state, but they share one principle: the law won’t leave a surviving spouse destitute just because a will says so.
Federal Protection for Retirement Accounts
One of the most overlooked protections comes from federal law. Under ERISA, employer-sponsored retirement plans like 401(k)s and traditional pensions must provide survivor benefits to a married participant’s spouse. The participant cannot name a different beneficiary without the spouse’s written consent, witnessed by a notary or plan representative.1Office of the Law Revision Counsel. 29 USC 1055 – Requirement of Joint and Survivor Annuity and Preretirement Survivor Annuity
This rule overrides state law and even prenuptial agreements. Because ERISA requires the waiver to come from a current spouse, a prenup signed before the wedding cannot validly waive these benefits. A separate post-marriage waiver would be needed. Many couples never sign one, which means the surviving spouse keeps the full retirement survivor rights even when other documents suggest otherwise.
Grounds for Contesting the Will Itself
When the issue isn’t the size of your share but the legitimacy of the document, you can file a formal will contest in probate court. General unhappiness with the terms is not a ground. You need one of these:
- Lack of testamentary capacity. The person making the will wasn’t mentally competent when they signed. Courts look at whether they understood they were making a will, knew what they owned, and could identify their close family.2Legal Information Institute. Testamentary Capacity
- Undue influence. Someone in a position of trust, often a caregiver or new partner, manipulated the deceased into changing the will. The classic pattern is isolation from family followed by sudden changes benefiting the influencer.
- Fraud or forgery. The deceased was tricked into signing, or the signature isn’t theirs.
- Improper execution. The will doesn’t meet the state’s formal requirements, which usually means writing, signature, and at least two witnesses.
You carry the burden of proof. The person defending the will doesn’t have to prove it’s valid; you have to prove it isn’t. That’s a real hurdle. Will contests are also expensive: attorney fees alone can easily reach $10,000 for a straightforward case, and complex disputes with multiple experts run far higher. Most probate attorneys bill hourly. Contingency arrangements exist but are uncommon and usually reserved for strong cases involving substantial estates. If the estate is small relative to likely legal costs, a contest may not make financial sense even when you’re right on the merits.
Watch for a No-Contest Clause
Some wills include a no-contest clause, sometimes called an in terrorem clause, that penalizes anyone who challenges the will. If you’re named in the will and receive something, the clause says you forfeit that inheritance if you file a contest and lose. It’s designed as a deterrent, and it works: you have to weigh the potential gain against the risk of walking away with nothing.
Many states won’t enforce a no-contest clause if the challenger had probable cause, meaning a reasonable person looking at the evidence would think the challenge had a real chance of succeeding. Evidence of undue influence or forgery can meet that standard. Under the UPC approach, adopted by a number of states, the clause is unenforceable whenever probable cause exists. A few states refuse to enforce these clauses at all. Others enforce them strictly regardless of the challenger’s reasons. Getting this wrong is one of the costliest mistakes a surviving spouse can make, so find out how your state treats them before filing anything.
One useful distinction: exercising the elective share is generally not treated as “contesting” the will. You’re invoking a separate statutory right, not attacking the will’s validity. In most states, claiming the elective share should not trigger a no-contest clause, though the specific language of the clause and your state’s law both matter.
What You’d Get If the Contest Succeeds
Winning doesn’t send the estate straight to you. If the deceased had an earlier valid will that wasn’t revoked, the court may reinstate it and distribute the estate under those terms. Whether that revival is automatic or requires evidence of the deceased’s intent depends on the state.
If no prior valid will exists, the estate passes under the state’s intestacy laws. For a surviving spouse, intestacy is often favorable. In most states, the spouse receives all or a large share of the estate when there are no children, and a significant share when there are children from the marriage. If the deceased had children from another relationship, the spouse’s share is typically smaller but still substantial.
Think this through before filing. Sometimes the prior will or intestacy laws would leave you worse off than the will you’re contesting. When that’s the case, the elective share is usually the smarter play.
Filing Deadlines
Both paths have tight deadlines, and courts rarely grant extensions.
For the right of election, deadlines are often measured in months from the date the will is admitted to probate or an administrator is appointed. Six months is common. Some states allow up to nine months from the date of death.
For a will contest, the window is similarly short. Some states give as little as 120 days after the will is admitted to probate. Others allow longer, but rarely more than a year. Minors and incapacitated individuals may have extended deadlines; a competent surviving spouse generally does not.
These clocks run alongside grief and administrative chaos, which is why they’re so easy to miss. If you think you might need to file either an election or a contest, talk to a probate attorney quickly. Sorting out your options six months later often means finding out the options have expired.
If You Signed a Prenup or Postnup
A prenuptial or postnuptial agreement can waive some or all of the spousal rights above. If yours includes a waiver of inheritance rights or the right of election, courts will generally enforce it.
For a waiver to hold up, both parties must have signed voluntarily, without coercion, and each side must have received a fair disclosure of the other’s assets and debts beforehand. If your spouse hid significant assets or pressured you into signing, you may be able to challenge the agreement itself. That’s a separate legal action from contesting the will. Win it, and the spousal protections snap back into place, at which point you can decide whether to take the elective share, contest the will, or both.
The one waiver that a prenup cannot accomplish is the ERISA retirement waiver. Federal law requires that consent come from a current spouse, so a prenup signed before the wedding doesn’t qualify.1Office of the Law Revision Counsel. 29 USC 1055 – Requirement of Joint and Survivor Annuity and Preretirement Survivor Annuity Absent a proper post-marriage waiver, the surviving spouse keeps the retirement survivor benefits regardless of what the prenup says.