75-2-211. Proceeding for elective share -- Time limit.
(1) Except as provided in Subsection (2), the election shall be made by filing in the court
and mailing or delivering to the personal representative, if any, a petition for the elective share
within nine months after the date of the decedent's death, or within six months after the probate of
the decedent's will, whichever limitation later expires. The surviving spouse shall give notice of
the time and place set for hearing to persons interested in the estate and to the distributees and
recipients of portions of the augmented estate whose interests will be adversely affected by the
taking of the elective share. Except as provided in Subsection (2), the decedent's nonprobate
transfers to others are not included within the augmented estate for the purpose of computing the
elective-share, if the petition is filed more than nine months after the decedent's death.
(2) Within nine months after the decedent's death, the surviving spouse may petition the
court for an extension of time for making an election. If, within nine months after the decedent's
death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate
transfers to others, the court for cause shown by the surviving spouse may extend the time for
election. If the court grants the spouse's petition for an extension, the decedent's nonprobate
transfers to others are not excluded from the augmented estate for the purpose of computing the
elective-share and supplemental elective-share amounts, if the spouse makes an election by filing
in the court and mailing or delivering to the personal representative, if any, a petition for the
elective share within the time allowed by the extension.
(3) The surviving spouse may withdraw his demand for an elective share at any time
before entry of a final determination by the court.
(4) After notice and hearing, the court shall determine the elective-share and supplemental
elective-share amounts, and shall order its payment from the assets of the augmented estate or by
contribution as appears appropriate under Sections 75-2-209 and 75-2-210. If it appears that a
fund or property included in the augmented estate has not come into the possession of the
personal representative, or has been distributed by the personal representative, the court
nevertheless shall fix the liability of any person who has any interest in the fund or property or
who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained
against fewer than all persons against whom relief could be sought, but no person is subject to
contribution in any greater amount than he would have been under Sections 75-2-209 and
75-2-210 had relief been secured against all persons subject to contribution.
(5) An order or judgment of the court may be enforced as necessary in suit for
contribution or payment in other courts of Utah or other jurisdictions.
Enacted by Chapter 39, 1998 General Session
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Last revised: Thursday, May 28, 2009