Change in Testator's Family After the Will is Executed Flashcards
What effect does testator’s marriage after the execution of a will have on that will?
It does not effect the validity of the will, but it may effect gifts and distributions because the spouse will have the right of election.
What effect does testator’s divorce, annulment or separation after the execution of a will have on that will?
A final decree of divorce, annulment, or separation will have the effect of revoking any gifts in the will to the spouse (whether to “my wife” or to “Jane”). Treat the ex-spouse as if they predeceased testator.
What effect does testator’s divorce, annulment or separation after execution of a will have on testamentary gifts to the issue of the ex-spouse?
Gifts to the issue of an ex-spouse are not revoked by the divorce, annulment or separation.
Remember: anti-lapse doesn’t apply to spouses, so you need a rule like this to save the gift to the ex-spouse’s issue.
When a couple divorces (separates, annuls) after due execution of a will - does that “unmarriage” revoke an appointment of the ex-spouse as guardian of their shared children?
No - “unmarriage” doesn’t affect a provision appointing the ex-spouse as guardian of the couple’s children.
This is the “bad spouse, good parent” rule.
If a couple remarries or reunites after “unmarriage,” what happens to the provisions that were revoked by the unmarriage?
They are automatically restored.
Before the death of testator but after his will was executed - the couple enters into a separation agreement - what result?
Nothing - the provisions are intact unless it’s a separation DECREE.
Before death of testator but after her will was executed - the couple has applied for divorce but it was not finalized yet - what result?
Nothing - the provisions remain intact unless there is a FINAL decree of divorce.
What effect does a divorce, annulment, or separation decree have on gifts that pass by operation of law (e.g. life insurance, totten trusts, etc.)?
Those gifts are also revoked by operation of law.
What is a pretermitted child?
A child born or adopted after due execution of a parent’s will.
When does the EPTL step in to protect pretermitted children?
When they are not provided for by anything in parent’s assets (by will or any settlement).
Look out for situations that suggest the parent forgot to update their bequests.
If there is a pretermitted child and the testator had at least one child when he executed the will:
And no provision is made for any children - what does the EPTL provide?
The pretermitted child inherits nothing (give them what the other kids get).
If there is a pretermitted child and the testator had at least one child when he executed the will:
And the will makes gifts to those children - what does the EPTL provide?
The pretermitted child shares in the amount as if a class gift had been made to the testator’s children.
If there is a pretermitted child and the testator had at least one child when he executed the will:
And the will makes limited or nominal gifts to children - what does the EPTL provide?
The pretermitted child takes his intestate share - which will come from all the other beneficiaries pro rata.
If there is a pretermitted child and the testator had at least one child when he executed the will:
And the will makes different gift amounts to different children - what does the EPTL provide?
Add the amounts to all the children together and divide by the number of children now living (including the pretermitted child). Divide by that number to get the share of the pretermitted child. The other children’s gifts will contribute to that amount pro rata.
If there is a pretermitted child and the testator had no children when the will was executed - what does the EPTL provide?
The pretermitted child will take his intestate share, to come from the other beneficiaries pro rata.
