6) Restrictions on Testamentary Transfers

Question 1

omitted spouse: situation

Answer 1

if will doesn’t provide for the spouse (who married D after the will was made), then omitted spouse gets:

Question 2

omitted spouse: what they get

Answer 2

1) 1/2 of Com P that belonged to D (plus her other half that she got anyway)
2) the 1/2 of quasi com property that belonged to D AND
3) a share of the separate property of D equal to what spouse would have received intestacy, but only up to 1/2 value of separate property in estate

Question 3

omitted spouse: exceptions

Answer 3

1) intent to NOT provide for the sposue in the will appears in the instrument
2) D provided for the spouse by transfer outside the estate + intent that that be instead of will is shown by statements of D or other evidence
3) spouse’s valid agreement waiving share (prenup)

Question 4

omitted spouse: who it applies to

Answer 4

only if still married, not former

Question 5

omitted child: situation

Answer 5

natural or adopted child who is born/adopted after teh will is made (could be before or after death of testator) + not included in will

Question 6

omitted child: rule

Answer 6

gets a share equal to what would have received if D had died intestate

Question 7

omitted child: exceptions

Answer 7

1) intentional omission + appears in the will
2) D devised substantailyl all of estate fo other parent of omitted child
3) decedent intentionally provided for the child by transfer outside the will, and in lieu of the will, and there is evidence of this intent

Question 8

omitted, aka

Answer 8

pretermitted

Question 9

where to get the $ for omitted person?

Answer 9

1) from portion of estate not disposed of by the will

2) from all other beneficiaries under will, in proportion to value they receive under the will