CALI - Omitted Spouses & Children Flashcards
Fred Williams executed his will several years prior to his marriage to Sally. Fred recently died testate leaving his entire estate to charity. He was survived by Sally and by a cousin.
Under these circumstances, Sally will take:
The ENTIRE ESTATE.
U.P.C. section 2-301(a) states that, if a testator’s surviving spouse married the testator after the execution of the will, the surviving spouse is entitled to receive a share of the estate equal to the intestate share of that portion of the estate not devised to a child of the decedent or of the spouse. U.P.C. section 2-102 defines that share of the estate as the entire estate if no descendant or parent of the decedent survives the decedent.
Suppose that, in Question 1, Fred had been survived by Sally and by a son, Bill, who is Fred’s child by a prior marriage. Suppose further that Fred devised half of his estate to Bill and the other half to charity.
Under these circumstances, Sally will take:
The first $150,000 plus one-half of the balance of that portion of the estate devised to charity.
U.P.C. section 2-301(a) states that Sally will take a portion of the estate not devised to a child of Fred born prior to the marriage. That means that Sally can take only a portion of the charitable devise. Under U.P.C. section 2-102, that portion will be the first $150,000 plus one-half of the balance of the charitable devise.
Would your answer be different if Fred had devised his entire estate to his son, Bill?
YES.
Since we established that Sally can only take a portion of the estate which is not devised to a child of Fred who is not a child of Sally, there is nothing for Sally to take. Although this may sound somewhat harsh, it is based upon the assumption that Fred would only have wanted to provide for Sally from that portion of the estate not devised to Bill if he had thought about providing for her. See U.P.C. section 2-301(a) and the official comments to that section.
Suppose that Fred executed his will two weeks prior to his marriage to Sally and left his entire estate to charity. At the time he executed his will, he told his attorney about the upcoming marriage to Sally but expressed his intent to not leave anything to Sally.
Is Sally entitled to take a share of the estate?
NO.
One of the exceptions to Sally’s right to take a portion of the estate is where it appears that the will was made in contemplation of the testator’s marriage to the surviving spouse. That can be proved from the face of the will or, as here, from “other evidence.” See U.P.C. section 2-301(a)(1).
You should note that Sally may be entitled to an elective share of the estate under certain circumstances set out in U.P.C. section 2-201 et seq.
Suppose that Fred’s will was executed long before Fred met Sally but the will contained a clause which states: “In the event that I shall marry, it is my intention not to provide for my spouse.” The will left Fred’s estate to charity.
Under these circumstances, will Sally take any portion of Fred’s estate?
NO.
While it may seem that Fred should have to consider his obligation to Sally in particular, there is no requirement that he do so. So long as he expresses his intent to reject the claim of any spouse, the surviving spouse will take no portion of the estate. U.P.C. section 2-301(a)(2).
Note again that Sally may have a claim to an elective share under circumstances stated in U.P.C. section 2-201 et seq.
Natalio validly executes a will leaving all of his estate to his mother, Beulla. Two years later, Natalio marries Stella. Soon after the marriage, Natalio purchases a life insurance policy on his life worth $3 million. He names his new bride, Stella, as the beneficiary of the life insurance policy. Natalio dies without changing his will and the life insurance policy still in effect. His estate without the life insurance policy is worth $2 million. How should his estate be distributed?
$2 million to Beulla.
Although Stella is an omitted spouse, Natalio provided for her outside of the will with the life insurance policy. We can infer from the amount of the life insurance policy (which is more than his estate) that Natalio intended for the life insurance policy to be in lieu of a gift in his will. U.P.C. section 2-301(a)(3).
Kim, a widow, had three children at the time she executed her will. She left her entire estate to her brother and did not mention any of her children in the will.
Under these circumstances, the children will take:
Nothing.
U.P.C. section 2-302 provides that omitted children will take only where they were born or adopted after the execution of the will. Since Kim’s children were alive at the time she executed her will, it is presumed that she had them in mind and decided not to leave them anything.
Bernie validly writes a will that leaves all of his property to his brother, Glenn. Three years later, Bernie marries Linda and they have a son together named Alexander. Linda dies leaving all of her property to Bernie. Bernie then dies, never having changed his will. How should Bernie’s estate be distributed?
Alexander is an omitted child and is entitled to his intestate share of his father’s estate. U.P.C. section 2-302(a)(1).
Suppose that Kim had two children, Tammy and John, at the time she executed her will and the will left one-half of Kim’s estate to “my children, Tammy and John” and the other one-half to charity. Kim’s third child, Tina, was born after the will was executed.
Under these circumstances, Tina would take:
One-third of the one-half of the estate left to Tammy and John.
Tina is entitled to inherit since she was born after the execution of the will. U.P.C. section 2-302(a). Since Kim had other children living when the will was executed and the will devised property to them, Tina will take a portion of the estate devised to Tammy and John. That portion will be an equal one. U.P.C. section 2-302(a)(2). This carries into effect the presumed intent of Kim to provide for her children equally. Incidentally, the better language for the will would have been to devise one-half of the estate to “my children, equally.” That builds flexibility into the will which accommodates after-born or adopted children.
Suppose that Kim had added a clause to her will which provides:
“Except as provided herein, I have intentionally omitted to provide for any other person related to me by blood or marriage.”
Under these circumstances, would Tina take a portion of the estate?
Yes.
While it can be argued that the disinheritance clause facially purports to disinherit Tina, the Official Comments to U.P.C. section 2-302(b) indicate that a more specific statement of an intent to disinherit after born children would be required.
Suppose that Kim’s will had not provided for her children nor made mention of them but that Kim left her entire estate to her husband, Ron, who is the father of Kim’s three children.
Under these circumstances, would Tina be entitled to take a portion of Kim’s estate since she was born after the will was executed?
No.
U.P.C. section 2-302(a)(2) allows Tina to take only if Kim devised a portion of the estate to her then living children. Since she did not do so, Tina is not entitled to any portion of the estate. Note that this carries into effect the presumed intent of the testatrix to treat her children equally.
Would your answer to the previous question be different if Tina was Kim’s only child and Kim’s will, executed prior to Tina’s birth, left the estate to Kim’s surviving spouse who was Tina’s father?
No.
Since Kim had no children at the time she executed her will and left her entire estate to her husband who was Tina’s father, Tina takes nothing from Kim’s estate. U.P.C. section 2-302(a)(1). This result reflects a presumed intent that the surviving parent will provide for the child.
Benji is married to Gloria. During their marriage, Benji writes a will leaving all of his property to his disabled sister, Katia. Benji and Gloria have twin sons 18 months later. Benji sets up a trust four years after the birth of the twins. The trust will pay income to the twins until they are age 30. At the age of 30, the trust will terminate and each twin will receive half. Benji funds the trust with $1 million. Benji dies a few years later with an estate of $1 million. If Gloria chooses not to take her elective share, how will Benji’s $1 million estate be distributed?
All to Katia.
The twins are omitted children, but U.P.C. section 2-302(b)(2) provides that omitted children are entitled to their intestate share UNLESS their parent has provided for them outside of the will and that we can infer from the amount that the parent intended the distribution to be in lieu of a gift in the will.
Martha validly executed her will in 2000. Her will left all of her property to charity, because the U.S. Army had told her that her only son, Charles, has died in a military exercise in 1999. However, when Martha died in 2002, Charles, who was 40 years old, was in fact still alive. Charles seeks a part of his mother’s estate. Is he entitled to any portion of his mother’s estate?
Yes.
Under U.P.C. section 2-302(c), a child who is left out of a will, because the parent mistakenly believes the child to be dead is entitled to share in the estate as would an after-born child. So Charles would be entitled to his intestate share, all of his mother’s property.
