By Lane V. Erickson, Idaho Estate Planning Attorney

Idaho is a unique state that offers many opportunities for family members to complete a probate for their loved ones after they have passed away. Like most states, Idaho does have a statute of limitations for the amount of time that can go by before a probate can be completed. Under normal circumstances, this is three years after the individual has passed away. As a result of this, if a person has a last will and testament, but a probate is not completed within 3 years, this last will and testament will no longer be considered valid. However, there is one exception to this three-year statute of limitations that exists for spouses.

This exception is best described in the recent Idaho Supreme Court case In the Matter of the Estate of Robert Ernest Melton and Hedwig “Hedy” Melton, which came out in January 2018. The main issue in this case is whether a creditor’s claim could still be made beyond the three-year period of time for the first spouse who passed away. However, in the course of making the decision on that issue, the Idaho Supreme Court provided a good analysis of the exception that exists to the three-year statute of limitations for filing a probate for someone who dies.

In this case, the wife, Hedy, passed away in 2008. No probate was completed for her after she passed away and the three-year statute of limitations ran out. Her husband, Robert, then passed away in 2013, about five years later. Shortly after Robert’s passing, a probate was filed for Robert that included Hedy as a joint probate. As was previously mentioned, under normal circumstances, a probate must be commenced within 3 years of a person’s passing to be valid. This is set forth in Idaho Code section 15-3-108 which specifically provides that “[n]o informal probate or appointment proceeding or formal testacy or appointment proceeding . . . may be commenced more than three (3) years after the decedent’s death.” I.C. § 15-3-108.

However, the Idaho Supreme Court then discussed the exception to this specific rule. According to the Idaho Supreme Court:

Generally, Idaho Code section 15-3-108 provides that no probate may be commenced more than three years after the decedent’s death. I.C. § 15-3-108. However, Idaho Code section 15-3-111 carves out a narrow exception to this three-year period when: (1) a marital community is dissolved by the death of a spouse; (2) the surviving spouse was entitled to all of the decedent spouse’s property; and (3) the surviving spouse died before any proceeding had been initiated on the estate of the spouse who died first. I.C. § 15-3-111. If these specific circumstances are present, then “the estates of both decedents may be joined for probate in a single proceeding” and “[t]he three (3) year provision of section 15-3-108, Idaho Code, applies only to the death of the spouse whose death occurred last.” Id. In other words, while Idaho Code 15-3-108 typically requires probate proceedings to be initiated within three years of a decedent’s death, Idaho Code section 15-3-111 provides a narrow exception, which tolls the three-year period until to the surviving spouse dies.

The Idaho Supreme Court specifically stated that the language in these statutes is “plain and unambiguous” and allows for this exception to the normal 3-year statute of limitations. As a result, a joint probate can be filed after the surviving spouse passes away even if the death of the first spouse happened more than 3 years before. This allows families to preserve the right to probate for their parents for a longer period of time and works to allow for an organized method of distribution.


If you do not have an estate plan in place, we can help. When it comes to estate planning or probate you should never try to do it alone. If you have questions for yourself or for your family and loved ones, call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at We will answer your questions and will help you solve your Idaho Estate Planning problems.

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