Decedents' Estates Flashcards
Summary
At least three-fourths of John’s estate should be distributed to Mary. A prenuptial agreement waiving a share of a spouse’s estate does not bar a surviving spouse from taking a bequest that was voluntarily made after the agreement was signed, and a pending divorce does not revoke a testamentary disposition in favor of a spouse. In states that have adopted Uniform Probate Code §2-119(c) or a like statute, Son is entitled to one-quarter of John’s estate. In other states, it is unclear whether one-quarter of John’s estate should be distributed to Son; in these states, the court will construe John’s intent, and there are arguments for and against the claim that John intended Son to take under his will. The court will appoint Mary as the personal representative of John’s estate because a surviving spouse has first priority to serve in this capacity. Son may not be appointed personal representative of the estate because Son is a minor.
Is Mary barred from taking under John’s will because she and John signed a prenuptial agreement?
A prenuptial agreement waiving rights that a spouse might otherwise assert against the estate of the other does not preclude a surviving spouse from taking a bequest voluntarily devised to the surviving spouse by a deceased spouse. Thus, Mary is not precluded from taking a share of John’s estate by the prenuptial agreement that she signed.
Rule and Application
A prenuptial agreement in which spouses waive rights to a share of each other’s assets upon death or divorce does not bar either party from making subsequent gifts or bequests to the other spouse. In re Estate of Geyer, 533 A.2d 423, 427 (Pa. 1987); In re Hillegass’ Estate, 244 A.2d 672 (Pa. 1968); L.S. Tellier, Spouse’s Right to Take Under Other Spouse’s Will as Affected by Antenuptial or Postnuptial Agreement or Property Settlement, 53 A.L.R. 2d 475 (1957). Such an agreement bars only claims that do not arise from a voluntary gift or bequest. Thus, the prenuptial agreement signed by John and Mary does not bar Mary from taking a share of John’s estate under his will.
Is Mary barred from taking under John’s will because, at the time of John’s death, there was a divorce action pending between them?
Although divorce bars a former spouse from taking a bequest under a will executed prior to the divorce, the filing of a divorce action does not. Thus, Mary is entitled to take under John’s will notwithstanding the pendency of a divorce action at the time of his death.
Rule and Application
A bequest may be revoked by operation of law when a change in circumstance occurs that makes it unlikely that the testator would have wanted a beneficiary named in the will to take under the will. All states provide that if, after the execution of a decedent’s will, the decedent is divorced, a bequest in favor of the decedent’s former spouse is revoked by operation of law. See UNIF. PROBATE CODE § 2-804. However, the typical statute does not apply if a divorce proceeding is pending when one of the spouses dies. This approach derives from the fact that, until the divorce is finalized, no property division order will be entered; thus the moral and legal claims of each spouse in the property of the other have not yet been satisfied.
Under John’s will, is John’s biological, but adopted-out, child entitled to take a share of John’s estate?
In most states, Son will be entitled to a share of John’s estate only if the court concludes that John intended to include an adopted-out child in the bequest to “my children who survive me.” However, John’s adopted-out child, Son, is entitled to a share of John’s estate under UPC § 2-119(c) or a like statute.
Rule and Application
Under the terms of John’s will, one-fourth of John’s estate is distributable to John’s “children who survive me.” Son is a biological child of John who survived John. However, John consented to Son’s adoption by Aunt, and an adoption typically severs the parent-child relationship between the child and his biological parents. See UNIF. PROBATE CODE § 2-119(a). A few states do not sever the parent-child relationship when the child is adopted by a relative of a biological parent. See, e.g., 755 ILL. COMP STAT. 5/2-4(d)(1); UNIF. PROBATE CODE § 2-119(c) (2008) (adopted in North Dakota and Utah). In these states, Son would take under John’s will.
In most states, Son would take only if the court concluded that John, when using the words “my children” in his will, intended to include an adopted-out child. The evidence on this question is far from determinative. On the one hand, John gave Son up for adoption to a relative, Aunt, and he took Son into his own home after Aunt’s death. John also told Mary that he was Son’s father, and he did so after the will was executed. On the other hand, there is no evidence that John attempted to formalize his relationship with Son. It is thus unclear whether Son would take a share of John’s estate.
Who should be appointed as the personal representative of John’s estate?
Mary will be appointed personal representative of John’s estate.
Rule and Application
An individual named as personal representative in a decedent’s will has priority to receive letters testamentary from the court overseeing the administration of the estate. See UNIF. PROBATE CODE§ 3-203(a)(1). Where, however, the will is silent regarding the appointment of the personal representative, the court will appoint a person granted priority underthe governing statute if that person is otherwise qualified. Typically, the decedent’s surviving spouse is the individual with the first priority. See id. § 3-203(a)(2).
Under the Uniform Probate Code, a surviving spouse has first priority only if the spouse is a devisee of the decedent. Mary satisfies that condition. Therefore, Mary will be appointed personal representative of the estate. Even if Mary were not a devisee, she would still be entitled to be appointed under the Code because John’s devisees (i.e., “my children”) are not qualified to be appointed personal representatives because Son is a minor. See UNIF. PROBATE CODE § 3-203(a)(4).
