Elective Share and Similar Protections Against Disinheritance Flashcards
What are the protections against disinheritance?
Family allowance, exempt property, homestead allowance, use of the family residence, and elective share
Who gets the family allowance?
Extends to surviving spouse and minor children the decedent was obligated to support
What is the priority of family allowance?
priority over all other claims against the estate, except the administrative expenses and costs
What is the monetary cap of the family allowance?
$24,000 or monthly payments of $2000 for one year
This is an addition to anything received under the will or law
Who gets the exempt property?
SS. If no SS, the minor children of the decedent are entitled in equal shares to the same value
What is the priority of exempt property?
Third in line, behind family allowance and administrative expenses
What is the monetary cap of exempt property?
$20,000
This is in addition to anything received under the will or the law
What kind of property is exempt property?
household furnishings, automobiles, furnishings, appliances, personal effects
Who gets the Homestead allowance?
SS. If no SS, minor children of the decedent
What is the priority of the homestead allowance?
Fourth in line
What is the amount of the homestead allowance?
$20,000
This is instead of any amount payable under the will or law. If the amount received under the will or law is less than $20K, then they receive an amount that brings the total amount up to $20K
A decedent that dies before 1/1/17 trying to claim elective share and homestead allowance
They cannot claim both elective share and homestead allowance
A decedent that dies after 1/1/17 trying to claim elective share and homestead allowance
They can claim both homestead allowance and elective share
Method of election of for the first three protections
must be claimed within one year of decedent’s death (but can be waived in a valid marital or premarital agreement)
What is “use of the family residence” protection?
the surviving spouse has the right to continue living in the principal residence until there is a final court order or the SS and the other interested parties reach an agreement
but the ss usually gets the family residence anyways (ie joint tenancy)
What is the amount of the elective share (after 1/1/17)?
1/2 of the value of the marital property portion of the augmented estate
The old rules left 1/3 if there were children or other descendants, and 1/2 if there were not. Also the old rules only looked at the property of decedent instead of looking at both spouses’.
What are the components of the augmented estate?
-Net probate estate (includes probate estate, reduced by funeral and admin expenses, the homestead allowance, family allowance, exempt property, and enforceable claims) (not reduced by amount of estate taxes)
-nonprobate transfers to SS, i.e. life insurance
-nonprobate transfers to others (includes transfers to ppl other than decedent’s estate or the SS, transfers in which the decedent retained a right of possession of enjoyment, and gifts in excess of the federal gift tax “annual exclusion” within two years of the decedent’s death)
-SS’s property (including decedent’s property that transferred to SS because of death)
What is excluded from the augmented estate?
-property that the decedent received full consideration -the spouse joined in or consented in writing to the transfer
-separate property
Sources from which elective share is payable
-first, from SS’s own property in marital property
-second, whatever property passes from the decedent to the surviving spouse through probate or non-probate transfers
-third, pro-rata out of probate and non-probate transfers to third parties
How to calculate marital property portion of augmented estate
equal to value of augmented estate x % that increases based on how long the decedent and SS were married:
-less than 1 year - 3%
-btwn 1 year and 10 years (but less than 11 years) - [# of years x 6]%
-btwn 11 years and 14 years (but less than 15 years) - [60 + #of years above 10 x 8]%
-15 years of more - 100%
When to make claim for elective share?
no later than 6 months after the decedent’s will is admitted to probate or an administrator is qualified
within 6 months after that, the ss must file a complaint to determine elective share
can a spouse waive his right to elective share?
yes in writing either in a pre or post-nuptial
What is willful desertion and abandonement?
if ss willfully deserts or abandons the decedent and desertion or abandonment continues until the decedent’s death, the ss loses the elective share, the family allowance, the exempt property, the homestead allowance, even any intestate inheritance (but of course the spouse who was abandoned does not lose the right)
