Distribution of Property at Death

Question 1

What is the rule re: married person and testamentary transfers?

Answer 1

A married person or person in registered domestic partnership may transfer:

1. 1/2 of CP; and
2. ALL of SP by will

The surviving spouse owns other half of CP

Question 2

What is the rule re: intervivos gifts of CP?

Answer 2

One spouse may not make an intervivos gift of CP without WRITTEN consent of other spouse.

HOWEVER –> at death of donor spouse, the unauthorized inter vivid gift, IF it has not been voided by non-consenting spouse during donor spouse’s lifetime, is treated as a VALID testamentary transfer of donor’s 1/2 interest in CP

Question 3

What is the rule re: designation of a 3rd party insurance beneficiary?

Answer 3

A community funded life insurance policy is CP.

The deceased insured spouse is DEEMED to have made a testamentary transfer to a 3rd party beneficiary of his 1/2 interest in CP insurance proceeds.

Question 4

What is the “item theory of death distribution”?

Answer 4

The surviving spouse is entitled to 1/2 of each item of CP

Unless she consents, her CP claims are NOT satisfied by 1/2 of the aggregate CP

Question 5

What is the “survivor’s duty to elect”?

Answer 5

Testator may insert an “election clause” in will, stating that surviving spouse must EITHER:

1. elect to take under terms of will; OR
2. assert her CP ownership rights

Question 6

What is the rule if there is no explicit election clause?

Answer 6

If there is NO explicit election clause, a surviving spouse may asset BOTH her CP rights and her rights under will PROVIDED that this behavior would not upset decedent’s testamentary plan

Question 7

What is the rule if decedent attempts to pass surviving spouse’s 1/2 CP interest in will?

Answer 7

In this case, surviving spouse must elect either to take under terms of will or assert her own CP rights

Question 8

When does property pass by intestacy?

Answer 8

All property that is not transferred by will or testamentary substitute passes by intestacy.

Question 9

What happens to CP and quasi CP that passes by intestacy?

Answer 9

Intestate decedent’s 1/2 interest in CP and quasi CP passes to surviving spouse

Question 10

What happens to decedent’s SP that passes in intestacy?

Answer 10

Intestate decedents SP will pass according to 3 statutory formulas:

1. ALL to surviving spouse IF there is no surviving issue, parent, brother, sister, or issue of deceased brother or sister
2. 1/2 to surviving spouse when decedent leaves:
   - only one child, OR
   - issue of deceased child, OR
   - no issue, but a parent or parents, or their issue, or issue of either of them;
3. 1/3 to surviving spouse when decedent leaves:
   - more than 1 living child; or
   - 1 living child and issue of one or more deceased children; OR
   - issue of two or more deceased children