Elective Share and Similar Protections Against Disinheritance

Question 1

What are the protections against disinheritance?

Answer 1

Family allowance, exempt property, homestead allowance, use of the family residence, and elective share

Question 2

Who gets the family allowance?

Answer 2

Extends to surviving spouse and minor children the decedent was obligated to support

Question 3

What is the priority of family allowance?

Answer 3

priority over all other claims against the estate, except the administrative expenses and costs

Question 4

What is the monetary cap of the family allowance?

Answer 4

$24,000 or monthly payments of $2000 for one year

This is an addition to anything received under the will or law

Question 5

Who gets the exempt property?

Answer 5

SS. If no SS, the minor children of the decedent are entitled in equal shares to the same value

Question 6

What is the priority of exempt property?

Answer 6

Third in line, behind family allowance and administrative expenses

Question 7

What is the monetary cap of exempt property?

Answer 7

$20,000

This is in addition to anything received under the will or the law

Question 8

What kind of property is exempt property?

Answer 8

household furnishings, automobiles, furnishings, appliances, personal effects

Question 9

Who gets the Homestead allowance?

Answer 9

SS. If no SS, minor children of the decedent

Question 10

What is the priority of the homestead allowance?

Answer 10

Fourth in line

Question 11

What is the amount of the homestead allowance?

Answer 11

$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

Question 12

A decedent that dies before 1/1/17 trying to claim elective share and homestead allowance

Answer 12

They cannot claim both elective share and homestead allowance

Question 13

A decedent that dies after 1/1/17 trying to claim elective share and homestead allowance

Answer 13

They can claim both homestead allowance and elective share

Question 14

Method of election of for the first three protections

Answer 14

must be claimed within one year of decedent’s death (but can be waived in a valid marital or premarital agreement)

Question 15

What is “use of the family residence” protection?

Answer 15

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)

Question 16

What is the amount of the elective share (after 1/1/17)?

Answer 16

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’.

Question 17

What are the components of the augmented estate?

Answer 17

-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)

Question 18

What is excluded from the augmented estate?

Answer 18

-property that the decedent received full consideration -the spouse joined in or consented in writing to the transfer
-separate property

Question 19

Sources from which elective share is payable

Answer 19

-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

Question 20

How to calculate marital property portion of augmented estate

Answer 20

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%

Question 21

When to make claim for elective share?

Answer 21

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

Question 22

can a spouse waive his right to elective share?

Answer 22

yes in writing either in a pre or post-nuptial

Question 23

What is willful desertion and abandonement?

Answer 23

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)