Elective Share Statute

Question 1

Elective share amount

Answer 1

the greater of $50,000 or 1/3 of the estate

Question 2

If elective share is not met?

Answer 2

Other beneficiaries contribute pro rata

Question 3

Testamentary Substitutes

Answer 3

TSs need a LEG UP

Totten Trusts
Survivorship Estates
Lifetime transfers w/stings attached (revocable or T retains life estate if irrevocable)
Employee pension, profit-sharing, and deferred compensation plans (if qualified plan, only 1/2 if T-Sub)
Gifts made within 1 year of death
U.S. Government Bonds and other “pay on death” arrangements
Powers of Appointment (property over which T had a presently exercisable power of appointment)

Generally, if T had an interest in it, its a T-Sub

Question 4

Calculating the Elective Share Estate

Answer 4

Full value of T-Sub EXCEPT

(survivorship estates involving T and a third party)

• consideration-furnished test applies: surviving spouse has the burden of proving the amount of the dead spouses contribution to the asset
• if the survivorship estate was created BEFORE the marriage then can only get up to 1/2 in

Survivorship estates involving T and the surviving spouse: 1/2 gets in

Question 5

Elective Share trusts

Answer 5

do not satisfy the surviving spouse’s right of election

-read the trust as though the surviving spouse predeceased T as though there was no life estate in the surviving spouse and accelerate to the remainder-man

Question 6

Procedural Rules Governing the Elective Share

Answer 6

Personal Right: only the surviving spouse can make

Waiver- can be waived in a writing signed and acknowledged before a notary public (e.g., in a premarital agreement)

Question 7

Multi-jurisdictional problems

Answer 7

only a spouse of a decedent domiciled in NY at time of death has a right of election, unless T expressly states in his Will that disposition of his property is to be governed by NY law

Question 8

Exempt Property- Definition

Answer 8

Items that surviving spouse gets first or off the top before you do anything else (if no spouse, it goes to kids under 21)

Question 9

Exempt Property- What property?

Answer 9

• One car (up to $25,000)
• Furniture, appliances, electronics, etc. (up to $20,000)
• Cash Allowances (up to $25,000)
• Animals, farm machinery, tractors, etc. (up to $20,000); and
• books, dvds, cds, software, etc (up to $2,500)

basically just mention that surviving spouse gets exempt property first

Question 10

Circumstances Disqualifying Spouse from Taking Elective Share (and exempt property)

Answer 10

DISMAL