Division of property at death

Question 1

General rule

Answer 1

Character of property is presumptively as expressed in the title.

Effect—surviving spouse takes ½ of each item of decedent’s CP and QCP, and non-acquiring spouse has no interest in QCP acquired by the surviving spouse

Question 2

Intestate succession

Answer 2

1. CP—Surviving spouse entitled to ½ of CP as well as other ½ that deceased spouse owned
2. SP—Surviving spouse entitled to decedent’s entire SP if no other heirs, ½ of SP if decedent survived by one heir, and 1/3 of SP if decedent survived by more than one heir

Question 3

Testate succession

Answer 3

1. Testator can bequest ½ of CP
2. Surviving spouse’s election clause—when testator includes election clause in a will or attempts to pass the surviving spouse’s ½ interest in CP, surviving spouse must choose between CP rights or rights under the will (otherwise surviving spouse can assert both CP rights and rights under the will)