560:10 Distribution When Surviving Spouse Waives Testate Distribution. –
Upon the death of either husband or wife, testate, and the surviving spouse has elected to waive the homestead right, if any, and the provisions of the will in his or her favor, if any, and has elected to claim his or her rights hereunder, such surviving spouse shall be vested with the following portion of the estate remaining after the payment of debts and expenses of administration:
I. If there are children of the deceased surviving (whether by the surviving spouse or by previous marriage) or issue of any deceased children, one-third part of the personalty and one-third part of the real estate.
II. If the decedent leaves no children or issue of any deceased children, but does leave mother or father or sister or brother surviving, ten thousand dollars in value thereof of personalty and ten thousand dollars in value of real estate, and also one-half of the remainder above ten thousand dollars in each, the real estate to be assigned to the surviving spouse in the same manner as dower heretofore has been assigned. Where the inventory value of the real estate does not exceed ten thousand dollars, the surviving spouse shall be entitled to the whole of said remainder and no assignment of the same shall be required unless some party in interest shall petition to the probate court therefor.
III. If the decedent leaves no children or issue of any deceased children, nor mother or father, nor sister or brother surviving, ten thousand dollars of the value thereof, plus two thousand dollars for each full year from the date of marriage to decease of spouse, and also one-half in value of the remainder above said sum computed as above, in the personalty, and the same in the real estate, the real estate to be assigned in the same manner as dower has heretofore been assigned. Where the inventory value of the real estate does not exceed ten thousand dollars, the surviving spouse shall be entitled to the whole of said remainder and no assignment of the same shall be required unless some party in interest shall petition the probate court therefor.
IV. That part of the estate not passing to the surviving spouse as provided in paragraphs I through III shall pass in accordance with the terms of the will, provided that the surviving spouse shall take nothing under the will.