Elective Share

Question 1

What law governs elective share?

Answer 1

Law of the state decedent was domiciled in at death governs the right to take an elective share of property in another state

Question 2

What happens if decedent was domiciled in community property state?

Answer 2

there is no elective share for the surviving spouse, because in community property states, each party has testamentary disposition over only 50% of the marital assets

Whatever property was purchased before the marriage remains separate – the owner may do whatever they what BUT all other property obtained during the marriage belongs to both spouses and each is entitled to 50%

Question 3

What happens if decedent was domiciled in separate property state?

Answer 3

Apply either partnership theory

OR

Support theory

Question 4

What is the elective share under partnership theory?

Answer 4

whatever was made during the marriage is important to both spouses

Question 5

What is the elective share under support theory?

Answer 5

Wife entitled to 1/3 of decedent’s estate

Question 6

UPC’s approach to elective share

Answer 6

UPC 2-202

a) UPC uses a sliding scale based on the number of years of marriage
i. Surviving spouse may be entitled to as much as 50% of decedent spouses estate – assuming that they were married 15 + years

Question 7

Can you waive an elective share?

Answer 7

YES, unless…

The party receives gov’t subsidy (like Medicaid) OR

is subject to federal or state tax liens

Question 8

Other benefits for surviving spouse

Answer 8

Social security

Pension and retirement accounts

Homestead

Personal property set-aside

Family Allowance

Question 9

Social security

Answer 9

SS benefits only go to spouses or ex-spouses

Depends on the length of the marriage — you have to be married for 10 years to be able to collect. Even if you’re divorced and the ex-spouse dies, you can collect, so long as you were marred for at least 10 years

Question 10

Pension and Retirement Accounts

Answer 10

Accounts funded by IRSA mandate that the benefits to go ONLY the surviving spouse

Question 11

Homestead

Answer 11

a) A homestead is an allowance to secure the family home
b) Mostly taken by people who farm
c) UPC sets limt at $22,500

Question 12

Personal Property set-aside

Answer 12

UPC sets limit at $15,000

Question 13

Family Allowance

Answer 13

An allowance for the maintenance of the surviving spouse and maintenance of minor children