Iowa Code 633.237 – Presumption against filing elective share
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1. Following the appointment of a personal representative of the estate of the decedent, the personal representative shall cause to be served a written notice upon the surviving spouse pursuant to section 633.40, subsection 5, notifying the surviving spouse that unless, within four months after service of the notice, the spouse files an election in writing with the clerk of court electing the share as set forth in section 633.236 and sections 633.238 through 633.246, the spouse shall be deemed to take under the will or to receive the intestate share. If, within the four-month period following service of the notice, an affidavit is filed setting forth that the surviving spouse is incapable of making the election and does not have a conservator, the personal representative shall make application to the court for an order pursuant to section 633.244.
Terms Used In Iowa Code 633.237
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Clerk of court: An officer appointed by the court to work with the chief judge in overseeing the court's administration, especially to assist in managing the flow of cases through the court and to maintain court records.
- Conservator: means a person appointed by the court to have the custody and control of the property of an adult under the provisions of this chapter. See Iowa Code 633.701
- Court: means , when referring to a court of this state, the district court sitting in probate with jurisdiction of conservatorships and guardianships. See Iowa Code 633.701
- Decedent: A deceased person.
- Estate: means the real and personal property of either a decedent or a ward, and may also refer to the real and personal property of a trust described in section 633. See Iowa Code 633.3
- following: when used by way of reference to a chapter or other part of a statute mean the next preceding or next following chapter or other part. See Iowa Code 4.1
- Intestate: Dying without leaving a will.
- Personal representative: includes executor and administrator. See Iowa Code 633.3
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Surviving spouse: means the surviving wife or husband, as the case may be. See Iowa Code 633.3
- Trustee: means the person or persons serving as trustee of a trust described in section 633. See Iowa Code 633.3
- Trustee: A person or institution holding and administering property in trust.
2. Following the death of a settlor of a revocable trust, the trustee of such revocable trust shall cause to be served a written notice upon the surviving spouse pursuant to section 633.40, subsection 5, notifying the surviving spouse that unless, within four months after service of the notice, the spouse files an election with the trustee electing the share as set forth in section 633.236 and sections 633.238 through 633.246, the spouse shall be deemed to take under the terms of the revocable trust. If, within the four-month period following service of the notice, an affidavit is filed setting forth that the surviving spouse is incapable of making the election and does not have a conservator, the trustee shall make application to the court for an order pursuant to section 633.244.
3. If the surviving spouse has a conservator, notice shall be given to the conservator and the spouse pursuant to subsections 1 and 2.
4. The notice provisions under subsections 1 and 2 are not applicable if the surviving spouse or the spouse’s conservator files, at any time, an election to take under the will, receive the intestate share, or take under the revocable trust. If the surviving spouse fails to file an election under this section within four months of the date notice is served, it shall be conclusively presumed that the surviving spouse elects to take under the will, receive the intestate share, or take under the revocable trust.
5. Upon application of the surviving spouse or the spouse’s conservator filed before the time for making the election expires, the court may extend the period in which the surviving spouse may make the election.