1. Florida Wills Rules Flashcards
1
Q
What are lineal ascendant? What are lineal descendants?
A
Lineal ascendants include parents, grandparents, etc. Lineal descendants include children, grandchildren, etc.
2
Q
What is a collateral heir?
A
Collateral heirs are siblings; meaning two people who stem not from one another but from a common ancestor.
3
Q
What is per stripes distribution?
A
Per stirpes distribution means that the descendant of a deceased person take by representation the share that the deceased person would have taken had he survived to be an heir.
4
Q
What is per capita distribution?
A
Rule for distribution in most states and under the UPC where the stirpital shares are determined at the first level at which there are living takers.
5
Q
What rule does Florida follow for intestate succession purposes?
A
Florida follows strict per stirpes.
6
Q
What is strict per stripes?
A
Stirpital shares are determined at the first generational level, whether or not there are any living taker at that level.
7
Q
When does the surviving spouse take the entire intestate estate?
A
When the decedent is survived by descendants, all of whom are also descendants of the surviving spouse and the spouse does not have any other descendants or the decedent leaves no surviving descendants.
8
Q
When is the surviving spouse entitled to one-half of the intestate estate not passing to the decedent’s descendants?
A
If the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of the other.
9
Q
The right of a spouse to inherit from the decedent is conditioned on the existence of the what?
A
Marital relationship at he time of death so divorce severs this relationship but legal separation does not.
10
Q
How is the portion of the estate not going to a surviving spouse distributed to other heirs?
A
Descendants, per stirpes;
Parents or the surviving parent;
Siblings and their descendants, per stripes;
1/2 to paternal grandparents and 1/2 to maternal grandparents and their descendants, per stirpes (both halves to one side if no takers not the other side;
Kindred of the last deceased spouse, as if she had survived the decedent and then died;
Failing that, the estate escheats to the state..
11
Q
For the purposes of intestate succession, adopted children are treated as what?
A
Adopted children are treated the same as natural children of the adopting parents.
12
Q
IS there inheritance in either direction between adopted children and their natural parents?
A
No except where an adopting parent marries one of the natural parents or the child is adopted by a close relative.
13
Q
Any parent natural or adoptive, disbarred from what?
A
Inheriting from a child if that parent’s parental rights were terminated.
14
Q
Generally, step children and foster children have what inheritance rights, unless adopted by the stepparent or foster parent?
A
Generally step children and foster children have no inheritance rights, unless adopted by the stepparent or foster parent.
15
Q
What doctrine applies when legal custody of a child is gained under an unfulfilled agreement to adopt him.
A
The Doctrine of adoption by estoppel allies when legal custody of a child is gained under an unfulfilled agreement to adopt him.
16
Q
In Florida, heirs conceived before the decedent’s death, but born thereafter inherit intestate property as if they had what?
A
Heirs conceived before the decedent’s death, but born thereafter inherit intestate property as if they had been born in the decedent’s lifetime.
17
Q
Children born out of wedlock are heirs of who but not who, unless what?
A
Children born out of wedlock are heirs of the mom but not the father, unless he marries the mother, is adjudicated the father before or after his death, or acknowledges paternity in writing.
18
Q
What are half bloods?
A
Half-bloods are siblings with only one common parent.
19
Q
Florida provides that half bloods take what proportion in relation to whole bloods, except where what?
A
Half bloods take half as much as whole bloods, except where all collateral kin are half bloods.
20
Q
Do most states and the UPC make distinction between half bloods and whole bloods?
A
Most states and the UPC do not make distinction between half bloods and whole bloods.
21
Q
What is the only way to disinherit an heir in Florida?
A
The only way to disinherit an heir in Florida is to dispose of the entire estate. Any undisposed property will pass via the intestacy statute regardless of the decedent’s express wishes.
22
Q
Has Florida adopted the Uniform Simultaneous Death Act?
A
Florida has adopted the Uniform Simultaneous Death Act.
23
Q
What does the Uniform Simultaneous Death Act provide for?
A
The Uniform Simultaneous Death Act provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he ad survived the other.
24
Q
In the case of a tenancy with right of survivorship, how much of the property passes through the estate of each.
A
1/2 of the property passes through the estate of each.
25
The USDA applies unless what?
Unless there are specific country provisions in the will or other instrument.
26
Florida has or has not adopted the UPC and revised USDA rule for Intestacy and Wills?
Florida has not adopted the UPC and revised USDA rule for Intestacy and Wills.
27
What does the the UPC and revised USDA rule for intestacy and wills say?
It requires a person to survive a decedent by 120 hours in order to take property as an intestate heir, will or life insurance beneficiary, or surviving going tenant.
28
Under Florida's Uniform Disclaimer of Property Interests Act, a beneficiary or heir may disclaim an interest when?
When disclaiming the interest results in the interest passing as though the disclaimant died immediately before the interest was created.
29
To be valid, a disclaimer must what?
To be valid a disclaimer must be in a writing identified as a disclaimer, describe the interest or power being disclaimed, be signed witnessed and acknowledged, and be delivered.
30
Disclaimers of real property must be what?
Disclaimers of real property must be recorded.
31
To be a qualified disclaimer for federal fight tax purposes, the disclaimer must be what?
Made within nine months after the decedent's death or the beneficiary's 21st birthday.
32
Does the right to disclaim exist irrespective of any spendthrift provision or similar restriction?
The right to disclaim exists irrespective of any spendthrift provision or similar restriction.
33
A surviving joint tenant or tenant by the entirety may disclaim any interest passing to her by what?
Passing to her by right of survivorship.
34
A disclaimer of an interest in real property held as tenants by the entrust does not cause the disclaimed interest to be what property?
Does not cause the disclaimed interest to be homestead property for purposes of descent and distribution.
35
The natural guardian of a minor child may disclaim an interest that, but for the disclaimer, would have what, but only when?
That, but for the disclaimer, would have passed to the minor as the result of another disclaimer, but only if the disclaimed interest does not pass to or for the benefit of the natural guardian as a result of the disclaimer.
36
Why is a disclaimer valid against creditors of the disclaimant?
Because creditors of the disclaimant never owned the property.
37
A disclaimer cannot be used to defeat what?
A disclaimer cannot be used to defeat a federal tax lien.
38
When is the right to disclaim barred?
The right to disclaim is barred if the beneficiary gives a written waiver of the right to disclaim, accepts the property or any of its benefits, voluntarily assigns transfers or encumbers the interest (or contracts to do so) or the property is sold pursuant to judicial process, or the beneficiary is insolvent.
39
Intentional bigamous conduct does what?
Bars the bigamous spouse from inheriting the other's estate.
40
A person who wrongfully participates in the killing of another may not what as a result of the death? The property passes as what?
May not receive any benefits as a result of the death. The property passes as if the killer had predeceased the victim.
41
Under the Slayer Statute, joint tenancies and tenancies by the entire are severed and treated as if what?
As if they were tenancies in common so the killer neither forfeits his fractional interest int he property not receivers the victim's fractional interest.
42
What is the evidentiary standard used in determining whether a person killed a victim?
Greater weight of the evidence; a conviction is not required.
43
What is an advancement?
An advancement is a gift made to a next of kin with the intent that the gift be applied against any share the next of kin inherits from the donor's estate.
44
At common law, a substantial lifetime gift to next of kin was presumed to be what?
Presumed to be an advancement.
45
In Florida, no gift is considered an advancement unless what?
Unless this intention is declared in a contemporaneous writing by the decedent or acknowledged in writing as such by the heir.
46
If found to be an advancement, the gift's value when given is what?
Added back into the estate for purposes of calculating shares, and then subtracted from the recipient's share.
47
Does an heir need to return the amount of an advancement in excessive of the value of her intestate share?
An heir does not need to return the amount of an advancement in excessive of the value of her intestate share.
48
In Florida, an advancement is not binding on a predeceased heir's successors unless
Unless the writing or acknowledgment specifically provides otherwise.
49
A testamentary gift may be satisfied in whole or in part by what and if what?
An intervivos transfer from the testator to the beneficiary subsequent to the execution of the will if the testator intends the transfer to have that effect. provides for satisfaction in the will or a contemporaneous writing or the devisee acknowledges, in writing, the gift as one in satisfaction.
50
A writing is not required if the testator gives specifically described property to the beneficiary; in this case there is both what?
There is both a satisfaction of the legacy and an ademption.
51
In Florida, the doctrine does not apply unless the testator what?
Provides for satisfaction in the will or a contemporaneous writing or the devisee acknowledges, in writing, the gift as one in satisfaction.
52
A will is an instrument executed with certain formalities that is testamentary in character, and
Revocable during the maker's lifetime, and operative at the testator's death.
53
A codicil is a supplement to what?
A will that modifies the will.
54
A beneficiary has merely an expectancy and not property interest until the testator's death because
A will is not pertain until the testator's death.
55
The testator must have the present intent that the instrument operate as his will. Promises to make a will in the future and ineffective deeds are not given what?
They are not given effect as wills.
56
Parol evidence is admissible to show what?
That an instrument was not meant to have any effect; that it was a sham will.
57
A conditional will is one that provides what?
Provides that it is to be operative only if a sated condition is satisfied.
58
A court might interpret a condition as merely what?
Expressing motive for making the will and might give the will effect even if the condition does not occur.
59
The testator must be what?
Of sound mind at the time she makes a will.
60
In Florida, a will must be signed where?
At the end in time b the testator in the presence of two witnesses, who must sign in th testator's presence and in the presence of each other.
61
Any mark affixed by the testator with the intent that it operate as her signature does what?
Satisfies the signature requirement.
62
The testator's signature may be made by another person under what conditions?
At the testator's direction and in his presence.
63
If the proxy signer signs his own name as well as the testator's,
he may be counted as n attesting witness.
64
The order of signing is what?
Not crucial as long as the signing is done as part of single contemporaneous transaction.
65
In most states, a will is valid if signed where?
Anywhere on the instrument, not just at the end.
66
In Florida a will must be signed ______.
At the end in a time sense.
67
A minority of jurisdictions require the signing parties to be within each other's scope of vision but the majority use the more liberal what test?
More liberal conscious presence test.
68
The Florida Supreme Court has not ruled on the scope of vision vs. conscious presence test but lower courts what?
Seem to follow the scope of vision test.
69
Florida does not require a will to be what?
Published.
70
Published means what?
Identified to the witnesses as being a will.
71
At common law, a witness who was also a beneficiary was not what?
Competent and the will could not be probated unless there were two other competent witnesses.
72
Most states now provide that the will with a witness who was also a beneficiary is still valid, but
the bequest to the interested witness sis void unless she is supernumerary or would have taken a share if the will had not been probated.
73
Florida and the UPC have abolished the what?
The interested witness rule and allow interested witnesses to take under th will.
74
An attestation clause recites what?
That the elements of due election and is prima facie evidence of those elements.
75
An attestation clause is useful in the event a witness forgets or misremembers what?
The facts surrounding the execution.
76
A self-proving affidavit is sworn to by the testator and witnesses before who?
A notary public.
77
A self-proving affidavit functions like a what?
Deposition and eliminates the need to produce the witnesses in court years later.
78
Signatures on the affidavit can serve as what?
Signatures needed on the will itself.
79
Holographic wills are what?
Handwritten by the testator and signed but not properly witnessed.
80
Oral wills are what?
Will not written.
81
Holographic wills and oral wills are not recognized in Florida, even if what?
Even if they were validly executed in another state.
82
About half of the states and the UPC do recognize which type of will that is not recognized in Florida?
Holographic wills.
83
A properly executed military testamentary instrument is what in Florida?
Is valid in Florida.
84
A properly executed military testamentary instrument must be executed how?
By a testator who is eligible for military legal assistance, in the presence of military legal assistance counsel, and in the presence of two disinterested attesting witnesses.
85
A will other than a holographic or oral will executed by a nonresident of Florida is what?
Valid in Florida if validly executed under the law of the place where the testator was at the time of execution.
86
An attorney may be liable to beneficiaries harmed by his negligent what?
Preparation or execution of a will even though the will beneficiaries are not in privity of contract.
87
Physical attachment, internal coherence of pages, or when the pares read together set out an orderly dispositional plan raises a presumption that what?
A presumption that they were present and intended to be part o ft. will when it was executed.
88
Proof of integration can also be provided how?
By testimony or other extrinsic evidence.
89
A codicil modifies what and how?
A previously executed will and must itself be executed with the same formalities.
90
Under what doctrine is a will treated as having been executed on the date of the last codicil>
Under the doctrine of republication by codicil.
91
Why is the date for which a will is related as having been executed important?
It is important for purposes of the pretermitted child state, to determine whether a child was born after the will's execution.
92
May a document be incorporated into a will in Florida?
Yes provided it is in existence at the time of execution of the will and it is sufficiently described in the will and the will manifests an intent to incorporate the document.
93
An exception to the requirement that the document exist last execution permits a Florida testator to refer in her will to what?
To a list specifying th distribution of items of tangible personal property and to write or alter that list later.
94
Extrinsic evidence is admissible to identify what?
The writing whose terms are to be incorporated by reference.
95
A will may dispose of property be reference to acts and events even though they are what?
In the future and unattested, if they have significance apart from their effect on dispositions made by the will.
96
What is an example of a bequest that is valid due to its significance apart form the effect it has on dispositions made by the will?
A bequest to "each person in my employ at the time of my death" is valid because a testator would no make employment decisions solely for the purpose of disposing of her property.
97
Has Florida adopted the Uniform Testamentary Additions to Trusts Act?
Yes Florida and most states have adopted the Uniform Testamentary Additions to Trusts Act.
98
What does the Uniform Testamentary Additions to Trusts Act permit?
It permits a testator to make a bequest or devise to a trustee aka a pur-over gift, notwithstanding the fact that the trust may be amended or revoked after execution of th will.
99
A will cannot make a fight of what?
Non-probate assets- including life insurance proceeds and similar death benefits, property passing by survivorship, and property held in trust.
100
Life insurance proceeds and similar death benefits, property passing by survivorship, ad property held in trust pass according to what?
According to the terms of the particular arrangement.
101
When may a person with testamentary capacity revoke his will?
A person with testamentary capacity may revoke his will at any time prior to death.
102
How may a will b revoked?
By operation of law, by subsequent instrument, or by physical act.
103
Can a will that the testator has contractually agreed not to revoke be revoked?
Yes but the beneficiaries may then have a breach of contract action against the estate.
104
In most states marriage after the execution of a will has what effect on the will?
No effect on the earlier will.
105
In Florida, the pretreated souse takes an _______, except where what?
Takes an intestate share, except where this is waived in a valid ante or post nuptial agreement, where the will include a gift to the spouse in contemplation of marriage, or where the will discloses an intention not to make a provision for the spouse.
106
In Florida and most states, divorce or annulment following the execution of a will has what effect?
It revokes all will provisions in favor of the former spouse. The will is read as if the former spouse predeceased the testator.
107
Unlike most states, Florida applies the same rule that divorce o annulment following the execution of will revokes all will provisions in favor of the former spouse to what?
Revocable trusts, life insurance policies, and any other interest that transfers to a spouse at death.
108
In the case of a Florida revocable trust, life insurance policy, and any other interest that transfers to a spouse at death, the governing instrument is construed as though what? Such designations are not revoked if what?
As though the former spouse died on the date the judgment of divorce or annulment was entered. These designations are not revoked if made after the dissolution or pursuant to a court order.
109
Most states have pretermitted child statutes, meaning what?
If a testator fails to provide in his will for children born or adopted after the will's execution, the child is entitled to a share of the estate.
110
In making up the share under a pretermitted child statute, what rules apply.
General abatement rules apply.
111
When general abatement rules apply, the will is revoked to what extent?
To the extent necessary to make up the child's share.
112
All or part of a will may be revoked or altered by what?
A subsequent instrument executed with the same formalities as a will.
113
If a subsequent testamentary instrument does not expressly revoke an earlier will, then what?
The two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions.
114
A will or codicil can be revoked by what?
Burning, tearing, canceling, defacing, obliterating, or destroying it with the intent to revoke.
115
Intent to revoke must be what, in relation to revoking a will?
Concurrent with the act of revocation of a will.
116
May the physical act be performed by another person if it is done at the testator's direction and in his presence?
Yes. The physical act of destroying a will in order to revoke it may be performed by another if it is done at the testator's direction and in his presence.
117
Does the accidental destruction of a will revoke it?
No the accidental destruction of a will does not revoke it, even if the testator later decides he wanted to revoke it because the intent to revoke must be present at the time of the physical act of destruction.
118
If a will, last seen in the testator's presence or his control, cannot be found after his death or is found in a mutilated condition, then what?
Then a rebuttable presumption raises that the testator revoked the will.
119
Most states, but not Florida, permit an executed will to be partially revoked by what?
Partially revoked by physical act like striking out a clause.
120
A stricken clause in a will is given what effect in Florida?
A stricken clause in a will is given effect as if nothing had ben done to it in Florida.
121
When a will has been executed in duplicate, an act of revocation done to either copy does what?
Revokes the will.
122
The revocation of a will revokes all what?
All codicils to that will.
123
In Florida, there is no revival of revoked wills; meaning what?
Meaning that once a will is revoked by language in a later will, it cannot be revived unless it is reaccepted or republished.
124
If a will is lost or destroyed, and the presumption that the testator revoked it is overcome then what?
The specific contents of the will must be proved by the testimony of two disinterested witnesses or by one disinterested witness and a photocopy or carbon copy (but not a draft) of the will.
125
What doctrine applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective and but for this mistaken belief, he would not have revoked the will?
The Doctrine of Dependent Relative Revocation (D.R.R.)
126
Under the doctrine of dependent relative revocation (D.R.R.), if the disposition fails, then what?
Then the revocation also fails and the will remains in force.
127
When is the doctrine of dependent relative revocation (D.R.R.) applied?
D.R.R. is only applied when applying it comes closer to that the testator tried but filed to do than would an intestate distribution.
128
What is joint will?
A will of two or more persons executed as a single instrument.
129
What is a mutual will?
Wills that are separate instruments with reciprocal provisions.
130
What is in a typical will contract?
Parties agree on the terms of their wills and provide that the survivor will not revoke his will after the other's death.
131
In a typical will contract, can the survivor technically revoke his will after the other's death and have his new will probated?
Technically yes, but the beneficiaries of the revoked will may sue to have a constructive trust imposed on the estate assets in their favor.
132
In Florida, all contracts relating to wills must what?
In Florida, all contracts relating to wills must be in writing.
133
In Florida, execution of a joint will or mutual will does not what?
In Florida, execution of a joint will or mutual will does not create a presumption of a contract to make a will or a contract not to revoke it.
134
Any contractual will agreement executed by a nonresident of Florida is valid in Florida if what?
Is valid in Florida, if valid under the laws of the state or country where the agreement was executed at the time of execution.
135
When does a gift lapse?
If the beneficiary predeceases the testator.
136
Nearly all states have anti-lapse statutes that do what?
That operate to save the gift, if the predeceasing beneficiary was a specified degree of relationhip to the testator and left descendants who survived the testator.
137
Florida's anti-lapse statute provides that a predeceasing beneficiary's surviving descendants will take how?
Will take her share per stripes if certain conditions are met.
138
What conditions must be met in Florida for a predeceasing beneficiary's surviving descendants to take shares per stripes under Florida's anti-lapse state?
The beneficiary is a grandparent or descendant of a grandparent of the testator and the beneficiary is dead when the will is executed, fails to survive the testator, or is required by the will or by operation of law to be treated as having predeceased the testator.
139
Florida's anti-lapse statute applies unless what?
Unless a contrary provision appears in the will.
140
Under common law what was not allowed, if a will devised the residuary estate to two or more beneficiaries and one of them predeceased the testator and the anti-lapse statute did not apply?
The common law did not allow the remaining residuary beneficiaries to divide the deceased beneficiary's share among them unless the will specified to do so.
141
Under common law, when a will devised the residuary estate to two or more beneficiaries and one predeceased the testator and the anti-lapse statute did not apply, then the deceased beneficiary's share passed how?
The deceased beneficiary's share passed by intestacy under common law.
142
Florida and most states have replaced the no residue of a residue rule with what?
A rule allowing the remaining residuary beneficiaries to divide the share in proportion to their interest in the reanimating part of the residue.
143
If Florida's anti-lapse statute provisions are met then what in relation to the rule allowing the remaining residuary beneficiaries to divide the share in proportion to their interests in the remaining part of the residue?
The statute takes precedence and the deceased beneficiary's descendants take under Florida's anti-lapse statute.
144
If a will makes a gift to a class, only who may take a share of the gift?
Only members of the class who survive the testator take a share of the gift.
145
Only members of the class who survive the testator take a share of the gift unless what?
Unless the will provides otherwise or Florida's anti-lapse statute's requirements are met.
146
If a will makes a gift to a beneficiary who was edit at the time the will was executed, then what?
Then the gift is void.
147
In Florida, the rules that apply to lapsed gifts also apply to what?
In Florida the rules that apply to lapsed gifts also apply to void gifts.
148
What is adempton?
Ademption is the failure of a gift because it is no longer in the testator's estate at the time of her death.
149
Ademption applies only to what?
Specific devises and bequests.
150
A specific devise or bequest means what?
A gift satisfied only be receipt of the particular property described.
151
If specifically bequeathed property is not in the testator's estate at death, the bequest is what?
Adeemed and the beneficiary takes nothing.
152
In most states, the court will not inquire into the testator's intent or the reason the property is not longer in the estate, but in Florida what?
In Florida, courts will admit evidence of the testator's intent, particularly in circumstances where the absence of the property did not result from her own actions.
153
What is a general legacy?
A general legacy is a gift of a specific dollar amount.
154
What is a demonstrative legacy?
A demonstrative legacy gives a dollar amount but specifies a particular asset as the source of payment.
155
Neither a general legacy or a demonstrative legacy is deemed by what?
By an absence of cash or the specific asset in the estate.
156
How will a general legacy or a demonstrative legacy be satisfied in absence of cash or the specific asset in the estate?
A general legacy or demonstrative legacy will be satisfied, in absence of cash or specify asset in the estate, by selling other assets or making a distribution in kind.
157
A court will attempt to construe a gift of securities as a what?
As a general legacy.
158
A court will attempt to construe a gift of securities as a general legacy unless what?
Unless the testator specifically stated "my X amount of shares of X stock."
159
Florida does not apply the ademption doctrine to certain cases involving what?
Florida does not apply the ademption doctrine to certain cases involving either property disposed of by a guardian or property that at the time of the testator's death is no longer in the estate but on which there is a balance owed to the testator.
160
A specific devisee of stock is entitled to any additional shares of what?
Any additional shares of the entity owned by the testator as a result of action initiate by the entity (merger or reorganization) or which were purchased under a dividend reinvestment plan.
161
What does the elective share statue give the surviving spouse?
The elective share statute gives the surviving spouse the election to take a statuary share of the estate in lieu of taking under the decedent's will.
162
In Florida, the elective share is what percent of the decedent's elective estate?
In Florida the elective share is 30 percent of the decedent's elective estate.
163
The elective share is in addition to what?
The elective share is in addition to the spouse's right tot exempt property, family allowance, and homestead.
164
What does the elective share consist of?
The elective share consists of the decedent's probate estate and various non probate assets.
165
What are the various non probate assets that fall within the elective share?
The decedent's interest in "payable on death" or survivorship account or securities, or in property held in joint tenancy with right of survivorship or by the entirety; revocable trusts; irrevocable transfers to the extent that the decedent retained a right to income or principal; the net cash surrender value of the decedent's life insurance; death benefits from a pension; or property transferred within one year before death or in satisfaction of the elective share.
166
What does the elective share not include?
The elective share does not include irrevocable transfers made before October 1, 1999; before the decedent's marriage; transfers made for adequate consideration or made with the written consent of the spouse; proceeds of the decedent's life insurance policy in excess of the net cash surrender value or maintained pursuant to a court order; the decedent's 1/2 of community property; property in a qualifying special needs trust; property included in the decedent's gross estate for federal estate tax purposes solely because he possessed a general power of appointment; or the decedent's homestead.
167
When must he election of elective share be filed?
The election must be filed on or before the earlier o the date that is six months after the service of a copy of the notice of administration on the surviving spouse or an attorney-in-fact or guardian of the property of the surviving spouse or two years after the decedent's death.
168
There person filing the election of elective share may petition the court for an extension of time
An extension of time.
169
If a petition is filed, then what?
the election of elective share is tolled.
170
When may an election be withdrawn?
At any time within eight months after the decedent's death and before the court's order of contribution.
171
Who may exercise the election of elective share?
The surviving spouse, her attorney, the holder of a durable family power o attorney, or if the surviving spouse is incapacitated, by the guardian of her property.
172
If the surviving spouse dies without having made an election of elective share, then what?
Then the right to make an election of elective share dies with her.
173
When is the right to elect an elective share not lost when a surviving spouse dies?
The right to an elective share is not lost if the surviving spouse dies after filing the notice of election but before the court determines the amount of the elective share.
174
All interests that pas or have passed to the spouse are first applied in what?
In satisfying the elective share.
175
The spouse cannot avoid the rule that all interests that pass or have passed to the spouse are first applied in satisfying the elective share by what?
By disclaiming or otherwise refusing to accept any interests.
176
The balance of the elective share is quietly apportioned among who?
Among recipients of elective estate property, taking first from the probate estate or revocable trusts, then form the other property in the elective estate. then the surviving spouse's interest in trust and finally recipients of charitable lead interests.
177
The right of election
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