72-2-227. Sources from which elective share payable. (1) In the proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:
     (a) amounts included in the augmented estate under 72-2-222(2)(a) that pass or have passed to the surviving spouse by testate or intestate succession;
     (b) amounts included in the augmented estate under 72-2-222(2)(c);
     (c) amounts included in the augmented estate that would have passed to the spouse but were disclaimed; and
     (d) amounts included in the augmented estate under 72-2-222(2)(d) up to the applicable percentage thereof. For purposes of this subsection (d), the "applicable percentage" is twice the elective-share percentage set forth in the schedule in 72-2-221(1) appropriate to the length of time the spouse and the decedent were married to each other.
     (2) If, after the application of subsection (1), the elective-share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under 72-2-222(2)(b)(iii)(A) or (2)(b)(iii)(B), are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others are applied so that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.
     (3) If, after the application of subsections (1) and (2), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is applied so that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of that remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

     History: En. 91A-2-207 by Sec. 1, Ch. 365, L. 1974; R.C.M. 1947, 91A-2-207; amd. Sec. 7, Ch. 52, L. 1981; amd. Sec. 54, Ch. 494, L. 1993; Sec. 72-2-706, MCA 1991; redes. 72-2-227 by Code Commissioner, 1993; amd. Sec. 11, Ch. 592, L. 1995.