2-5-105. Time limit and procedure for elective share.

(a) The surviving spouse, or a personal representative or guardian of the estate of a deceased or incompetent surviving spouse, may elect to take his elective share in the estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within three (3) months after the admission of the will to probate or within thirty (30) days after being advised of the right of election, whichever limitation last expires. In the event of a failure to file a petition within the foregoing time limitation the will governs and controls the distribution of the estate.

(b) After the filing of a petition to elect to take an elective share, the court shall set the petition for hearing and the surviving spouse, or his personal representative or guardian, shall give notice by certified mail not less than twenty (20) days before the date of hearing of the time and place set for hearing to all persons whose interest will be adversely affected by the taking of the elective share.

(c) After notice and hearing the court shall determine the right to the elective share and shall order its payment from assets of the estate. An assignment or allotment of assets by the personal representative to the elective share need not be made until the entry of a decree of distribution or such other time as may be designated by the court.

(d) The surviving spouse or his personal representative or guardian may withdraw his demand for an elective share at any time before entry of a final determination by the court of the right to an elective share.

(e) Any time after having been advised of the right of election, the surviving spouse or his personal representative or guardian may file with the court a renunciation or waiver of the right of election in which event the will shall govern and control the distribution of the estate.