Changes in Testator's Family After the Will is Executed

Question 1

Rule when testator marries post-will

Answer 1

Marriage after the execution of a will has NO EFFECT ON THE VALIDITY of the will, but it may affect gifts and dispositions under the will (b/c the spouse can elect).

Question 2

Rule when testator “unmarried”? Exceptions?

Answer 2

RULE- If the Court renders a FINAL DECREE of divorce, annulment or separation after the execution of a Will, all gifts and fiduciary appointments in favor of the FORMER SPOUSE are revoked by operation of law. [treat as if the spouse pre-deceased the testator]

EXCEPTIONS

• all gifts and fiduciary appointments in favor of the ISSUE of the former spouse are not revoked by operation of law;
• an appointment of the former spouse as guardian of the couple’s children is NOT affected;
• if the couple RECONCILE AND REMARRY, all provisions in favor of the former spouse are restored

Question 3

** Effect of a separation agreement?

Answer 3

A separation agreement (as opposed to decree) WILL NOT cut off the separated spouse UNLESS the agreement contains explicit language waving the separated spouses rights

Question 4

Effect of becoming “unmarried” on non-will stuff?

Answer 4

DIVORCE/ANNULMENT/SEPARATION DECREES REVOKE THINGS THAT PASS BY OPERATION OF LAW AS WELL AS BY WILL

EX- SUCH AS LIFE INSURANCE, TOTTEN TRUSTS, ETC.)

Question 5

What do we call a testator’s child who is born or adopted AFTER the will is executed?

Answer 5

PRETERMITTED CHILD

NOTE: to be pretermitted the child CANNOT be an after-conceived child (sperm baby); must at least be in the womb by time of death.

Question 6

Does the EPTL protect children alive when the will was executed?

Answer 6

NO– ONLY PROTECTS PRETERMITTED (aka after-born) CHILDREN

Question 7

EPTL Rule Re: Pretermitted Children

Answer 7

The EPTL only protect pretermitted children who are:
1- not provided for by ANY settlement; AND
2- Neither provided for nor mentioned in the will

Question 8

If T had 1 or more children when the will was executed AND no provision is made for any children, the pretermitted child . . .

Answer 8

inherits nothing

Question 9

If T had 1 or more children when the will was executed AND made gifts to the other children, the pretermitted child . . .

Answer 9

SHARES in the amount given to the other children as if a CLASS GIFT was made and the other children contribute pro rate (aka proportionately)

Question 10

If T had 1 or more children when the will was executed AND it appears that Ts intention was to only make a limited provision to the children living at the time the will was executed, the pretermitted child . . .

Answer 10

takes his INTESTATE share, which will come pro rata from all other beneficiaries

Question 11

If T had NO children when the will was executed, the pretermitted child . . .

Answer 11

takes his INTESTATE share, which will come pro rata from all other beneficiaries

Question 12

If Teddy’s Will devises a different amount to each child by providing for $1 million to my son Abner and $5 million to my daughter Babette”. Thereafter, Teddy adopts Peter. Peter gets . . .

Answer 12

• add the amounts together & divide by # of children including the pretermitted
• 1 mill + 5 mill = 6 mill, 6/3 = 2 million
• peter is entitled to 2 million dollars which will come from the other kids proportionately/pr rata

DONT TRY TO DO THE PROPORTIONS ON THE EXAM, JUST USE YOUR WORDS AND SAY THEY WILL PAY HIM 2MILL PROPORTIONATELY