8. Family Protection

Question 1

Year’s Support

Answer 1

The year’s support provision is Georgia’s most significant family protection mechanism.

It ensures that a decedent’s surviving spouse and minor children are financially supported, regardless of the provisions of the will or intestacy laws.

Question 2

Year’s Support

Who Can Claim

Answer 2

1. Surviving Spouse
2. Minor children(under 18 years of age) of the decedent.

Question 3

Year’s Support

Purpose

Answer 3

Provides financial support to maintain the standard of living for the spouse and/or minor children for 12 months after the decedent’s death.

Question 4

Year’s Support

Priority

Answer 4

The year’s support takes precedence over all other claims against the estate, except secured debts.

Question 5

Year’s Support

Amount

Answer 5

Determined based on the reasonable needs of the spouse and/or minor children, taking into account:

-The size of the estate.
-Standard of living maintained before death.

Question 6

Year’s Support

Procedure

Answer 6

-A petition for year’s support must be filed in probate court.

-Notice is given to interested parties (e.g., other heirs or creditors), who may object.

-The probate court determines the amount to be set aside

Question 7

Year’s Support

Effect on the Estate

Answer 7

The property set aside for year’s support is not subject to distribution under the will or intestacy laws unless it exceeds what is reasonably necessary for support.

Question 8

When surviving spouse barred from Year’s support?

Answer 8

(1) remarries;

(2) dies before filing; or

(3) Testator expressly provided alternate provision for surviving spouse(can choose YS or gift under the will)

Question 9

When is Minor child barred from year’s support.

Answer 9

(1) marries;

(2) dies; or

(3) turns 18 before filing.

Question 10

Pretermitted Spouse

Answer 10

A pretermitted spouse is a spouse who marries the testator after the execution of the will and is not provided for in the will.

Question 11

Pretermitted spouse

Entitlement

Answer 11

A pretermitted spouse is entitled to the share they would have received under Georgia’s intestacy laws, unless:

-The will was made in contemplation of the marriage, or
-The Will explicitly excludes the spouse.

Question 12

Pretermitted spouse

Intestate Share

Answer 12

In intestacy, the surviving spouse generally shares the estate with the decedent’s children, receiving at least one-third of the estate.

Question 13

Pretermitted Children

Answer 13

A pretermitted child is a child born or adopted after the execution of the testator’s will and not provided for in the will.

Question 14

Pretermitted Children

Entitlement

Answer 14

A pretermitted child is entitled to the share they would have received under Georgia’s intestacy laws, unless:

-The will clearly indicates the omission was intentional, or

-The will was made in contemplation of future children.

Question 15

Pretermitted Children

Intestate Share

Answer 15

If the testator dies intestate, children typically share the estate equally.

A pretermitted child is entitled to a share of the estate that ensures fairness among all children.

Question 16

What happens if a testator fails to provide for a living child believed to be dead?

Answer 16

The omitted child receives a share equal to what they would have received if the testator had died intestate, reduced by any provision for a surviving parent

This is based on the testator’s family at the time the will was written.

Question 17

If a testator mistakenly believes one of their children to be dead and has provisions for the other living child, what happens?

Answer 17

The omitted child will be included in a class with the non-omitted child, and each will receive an equal share of the gift

This applies when the testator had more than two children.

Question 18

True or False: Minor children can only claim benefits under the will and not under the year’s support statute.

Answer 18

False

Minor children can claim benefits under both the will and the year’s support statute.

Question 19

Homestead Exemption

Answer 19

Georgia allows the decedent’s surviving spouse and/or minor children to claim a homestead exemption to protect the family home from certain creditors.

The exemption applies only to the decedent’s primary residence and protects a certain amount of the home’s value.

Question 20

Elective Share

Answer 20

Georgia does not have a traditional elective share law. Instead, the surviving spouse’s protection is primarily through:

1. Year’s Support.
2. Pretermitted Spouse Rights.
3. Rights to jointly held property (e.g., tenancy by the entirety or joint tenancy with right of survivorship).