Donative Freedom/ spousal protections

Question 1

US Code

Gross income does not include the value of property acquired by

Answer 1

gift, bequest, devise, or inheritance

Question 2

US Code

employee gifts
- shall not exclude from gross income any amount

Answer 2

transferred by ot for an employer, to or for the benefit of an employee

Question 3

Generation skipping transfer tax

Answer 3

40% tax on wealth tranferred at death or during life, or to skip persons (grandchildren, or more) from a GST trust
- irrevocable trust taxes= 40% tax

Question 4

an illegal trust

Cannot give property right, then

Answer 4

take away if do something

Question 5

illegal trust

Can decide to never give the right if

Answer 5

a conditionis not met

Question 6

Illgal trust

religion
can say/cant say they get the money examples

Answer 6

1. get it upon ___ a religious event
2. cant say take away when you stop going to church

Question 7

Spousal protections

What protections are available

4

Answer 7

1. the homestead exemption or allowance
2. personal property exemptions
3. family allowance
4. elective share

Question 8

One protection for surviving spouses and minor children comes in form of “homestead” exemption, which generally means that the

Answer 8

spouse has some right in the marital home

Question 9

UPC homestead allowance

Entitles surviving spouse to

Answer 9

$22,500

Question 10

UPC homestead allowance

If there is no surviving spouse, minor and dependent children are entitled

Answer 10

each to an equal portion of $22,500

Question 11

UPC exempt personal property

provides for exempt property, which is

Answer 11

15k worth of personal property, such as household fruniture, automobiles, furnishings, appliances, and personal effects,
in the excess of any security interests in such property

Question 12

UPC exempt personal property

Like with homestead allowance, exempt property is awarded in addition to

Answer 12

any property that a surviving spouse is entitled to by way of elective share

Question 13

UPC family allowances

UPC provides for a family allowance to support

Answer 13

the decedents surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent

Question 14

UPC family allowances

The family members are entitled to

Answer 14

a reasonable allowance in money out of the estate for their maintance during the period of administration and the allowance can be paid in a lump sum or in periodic installments

Question 15

UPC family allowances

If the allowance is to exceed $2,250 a month

Answer 15

a court order is needed

Question 16

Family allowances, the homestead allowance, and the exempt property allotment, have

Answer 16

priority over all other cliams to the estate

Question 17

Spousal protections

The elective share can be claimed by a surviving spouse if the decedent spouse

Answer 17

dies intestate, if the elective share of the estate is larger then the intestate amount
OR
if the surviving spouse is left out of a will or is given only a token amount in the will

Question 18

The elective share is a protection against

Answer 18

spousal disinheritance, ensuring that a surviving spouse shares in a couples marital wealth, even against the wishes of the decedent spouse

Question 19

What should the surviving spouse do?

Q1: Is there a will
Yes: next question
No: final answer

Yes and no

Answer 19

Yes: Is the spouse in the will
No: the surviving spouse can take the intestate share or the elective share whichever is greater

Question 20

What should the surviving spouse do?

Q2: Is the spouse in the will?
Yes: Answer
No: next question

Answer 20

Yes: The spouse takes what is in the will (unless its a token amount, then the spouse may take an elective share”)
No: Is the omision intentional?

Question 21

What should the surviving spouse do?

Is the ommision intentional
Yes and No

Answer 21

Yes: spouse take elective share
No: spouse may take omitted share if satisfies statutory requirements (or elective share if greater)

Question 22

One of the only defenses that the decedents estate can make against a surviving spouse seeking to take an elective share is that the

Answer 22

surviving spose abandoned the decedent prior to death

Question 23

UPC Elective share and augumented estate

UPC goes through a compex computation to determine the value of the augumented estate, capturing the entrire value of the couples marital assets
The categories of inclusion are:

Answer 23

1. the decedents net probate estate
2. the decedents non-probate tranfers to others
3. the decdents non-probate transfers to the surviving spouse
4. the surviving spouses property and non-probate tranfers to others

Question 24

UPC Elective share and augumented estate

The net probate is the

Answer 24

value of the decedents probate estate, reduced by funeral and administration expenses, homesteaf allowance, family allowances, exempt property, and enforcable claims

Question 25

UPC Elective share and augumented estate

The decedents non-probate tranfers to others include

Answer 25

• any property that was owned or owned in substance bu the decedent immediately before death and theat passed through a nonprobate mechanism
• includes any property transferred during marriage over which the decendent retained some form of control, for example a power of appointment
• the decedents non-probate transfers to the surviving spouse
• forms of the surviving spouses own property (prop held in joint tenacy with right to survivorship interest, prop or accounts held in co-ownership registration with the right of survivorship equals the amount she contributed, any propertyinterests that passed to the surviving spouse by reason of the decedents death- not including homestead or family allowance, exempt prop, payments under fed soc sec system, - and property that would have been included in the surviving spouses nonprobate transfers to others, had the spouse been the decedent

Question 26

UPC Elective share and augumented estate

After the value of the augumented estate is properly calculated

Answer 26

the value is multiplied by the marital share percentage (based on length of marriage)
- the result is known as the “marital property portion” of the augumented estate

Question 27

Once the marital property portion is calculated

Answer 27

the share is divided into half to produce the amount of money in which the surviving spouse is entitled

Question 28

UPC Elective share and augumented estate

The UPC looks to the property that the surviving spouse owns in their own name and

Answer 28

applies it to the marital property percentage to that property

Question 29

Marital share depends on

Answer 29

The length of marriage

Question 30

Prenuptial contracts and electrive share waivers

Answer 30

sometimes in a prenupt they will include a waiver to waive or limit elective share rights

Question 31

UPC 213 Waiver of right to elect and other rights

The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived

Answer 31

wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse

Question 32

UPC 213 Waiver of right to elect and other rights

A surviving spouses waiver is not enforcable if the surviving spouse proves that:
1. he or she did not execute the

Answer 32

waiver voluntarily

Question 33

UPC 213 Waiver of right to elect and other rights

A surviving spouses waiver is not enforcable if the surviving spouse proves that:
2) The waiver was unconscionable when it was executed and, before execution of the waiver, he or she:

Answer 33

1. was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent
2. did not voluntarily and expressly waive, in writinq, and right to disclosure of the property or financial obligations of the decendent beyond the disclosure provided, and
3. did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent

Question 34

UPC 213 Waiver of right to elect and other rights

A surviving spouses waiver is not enforcable if the surviving spouse proves that:
3) an issue of unconscionability of a waiver is for decision by

Answer 34

the court as a matter of law

Question 35

UPC 213 Waiver of right to elect and other rights

A surviving spouses waiver is not enforcable if the surviving spouse proves that:
4) Unles it provides to the contrary, a waiver of “all rights” or equivilant language, in the property or estate or estate of a present or prospective spouse or a completely property settlement entered into after or in anticipation of seperation or divorce is a waiver of

Answer 35

all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of the benefits that would otherwise pass to him or her from the other bu intestate succession or by virtue of any will executed before the waiver or property settlement

Question 36

The most important factors for courts in determining whether waiver agreements are

Answer 36

valid are voluntariness and full financial disclosure

Question 37

elective share

UPC takes out the calculation property left to

Answer 37

issue of a previous relationship
- the surviving spouse can always claim an elective share, even if the entire estate was left to a child by a previous relationship

Question 38

spousal protections are built into

Answer 38

intestate

Question 39

spouses have homestead benefits

Answer 39

cant kick spouse out of home

Question 40

family allowance, the surviving spouse is

Answer 40

entitled to a certain amount

Question 41

spouse only gets elective share if

Answer 41

it is more then intestate share

Question 42

difference between commuity property and marital property

Answer 42

state determitive if there is community property