9. Elective Share of Surviving Spouse Flashcards
Purpose of the elective share
The elective share protects the surviving spouse against disinheritance by giving the surviving spouse a minimum share of the deceased spouse’s estate.
How do you compute the elective share?
The elective share is the greater of:
- $50,000, or
- One-third of the net augmented estate after payment of debts, but before payment of taxes.
What is the source of the elective share?
Other beneficiaries or heirs contribute proportionately (pro rata).
What is the purpose of the augmented (elective share) estate?
To prevent a testator from using non-probate assets to reduce the size of the probate estate and thus the size of the elective share, many testamentary substitutes are included in the augmented estate.
What is included in the augmented (elective share) estate?
- Totten Trusts (T)
- Survivorship Rights (S)
- Lifetime Transfers with Strings Attached (L)
- Employee Pension, Profit-Sharing, and Deferred Compensation Plans (E)
- Gifts Made Within one year of Death (G)
- U.S. Government Bonds and Other Pay on Death Arrangements (U)
- Powers of Appointment (P)
What is required for a gift to be included as part of the augmented estate?
- It have been made within one year of death, and
- The gift must exceed the annual gift tax exclusion of $14,000 to be part of the augmented estate.
However, gifts cause mortis (gifts made in fear of an impending death) are part of the augmented estate regardless of amount.
What property is excluded from the augmented estate?
- Life Insurance (L)
- One-Half off a Qualified Pension or Profit-Sharing Plan (O)
- Gifts Less than the annual exclusion Made Within One Year of Death (G)
- Pre-marriage Irrevocable Transfers (P)
- Irrevocable Transfers Made More than one year Before Death (I)
- Irrevocable Transfers Made During Marriage Where the Decedent Retained a Life Estate (T)
General rule for determining the value of non-probate assets included in the augmented estate:
The full value of a non-probate asset is included in the augmented estate.
General rule for determining the value of survivorship assets between decedent and third party created before the marriage:
No more than one half of the value of the non-probate asset is included in the augmented estate, even if the decedent furnished all of the consideration.
General rule for determining the value of survivorship assets between decedent and third party created during the marriage:
The amount of the deceased spouse’s contribution to the non-probate asset is included in the augmented estate.
The surviving spouse has the burden of proof.
General rule for determining the value of survivorship assets between decedent and the surviving spouse:
One half of the value of the non-probate asset is included in the augmented estate.
The contributions of each spouse to the non-probate assets are irrelevant.
How much time does the surviving spouse have to elect their elective share if there is no estate administration?
The surviving spouse must elect within two years of the decedent’s death.
How much time does the surviving spouse have to elect their elective share if the estate is admitted to probate?
The surviving spouse must elect within six months after the Surrogate’s Court issues letters testamentary or letters of administration.
Surviving spouse’s right to certain exempt personal property:
The surviving spouse is entitled to certain exempt personal property up to $92,500 value in addition to the elective share.
Under what circumstances is a surviving spouse precluded from claiming an elective share and exempt property?
- Divorce (D)
- Invalid Divorce Obtained by Surviving Spouse (I)
- Separation Decree (S)
- Marriage is Void (M)
- Abandonment or Lack of Support (AL)
