Family Changes after Will Executed Flashcards
T wrote a will giving his estate to his mother M. But then he married X and died a year later. Assuming no community property, what can X do?
The wife-of-a-year X cannot change the will because TX does not have a pretermitted spouse statute. The reason is that community property system is deemed to give a widowed spouse adequate protection.
X can claim (HEF)
- if T had a residence: probate homestead to occupy the homestead rent-free for life
- If T had no residence: $45,000 cash allowance in lieu of homestead
- Family allowance for one-year of support
- Exempt personal property set aside: up to $60,000 of tangible personal property items
- in lieu of the above, $30,000 of items not on exempt property list
What is HEF?
When dealing with a will or intestacy and there’s a surviving spouse, mention HEF.
H: homestead (if applicable)
E: Exempt personal property set aside
F: Family allowance
T’s will devises Blueacre “to my wife W if she survives me, otherwise to W’s daughter D.” The will names D as independent executor (‘if she is able; otherwise to ____”).
What happens to this will if T and W are divorced by T’s death?
If T and W are not married by T’s death, W cannot get Blueacre and D cannot inherit Blueacre if W had died before T. D also cannot be the independent executor of T’s estate.
Divorce revokes all gifts and fiduciary appointments in favor of former spouse and relatives of the former spouse (who are not relatives of the testator).
What is the rule for pretermitted children?
i) If no other children when will executed: child takes intestate share of all property not given to parent of child
ii) If there are other children when will executed:
- and such other children are not provided for, then child takes intestate share of all property not given to parent of child
- and such other child ARE provided for, then child’s share is limited to the gifts to such other children
The above applies UNLESS child is provided for by nonprobate transfer (life insurance, joint bank account) taking effect at testator’s death. Pretermitted child’s share is limited to a share of the probate estate, not nonprobate.
What is the rule for pretermitted children?
Nonprobate transfer isn’t at issue, only probate.
i) If no other children when will executed: child takes intestate share of all property not given to parent of child
ii) If there are other children when will executed:
- and such other children are NOT provided for, then child takes intestate share of all property not given to parent of child
- and such other child ARE provided for, then child’s share is limited to the gifts to such other children
T has children A and B. After she made her will, she and her husband H adopted C. The will left 2/3 to H and 1/3 to a sister.
What are the children A, B, and C’s rights?
A and B have no rights to T’s estates. They were alive when the will was executed and T chose not to write them in. Pretermitted child rule applies for children born or adopted after the will was executed.
C was adopted after the will was executed. Because there was other children when the will was executed and they were provided for, C’s share is limited to gifts to such other children. The other children get nothing so C would get nothing.
What happens if a pretermitted child is 1) provided for or mentioned in the will OR 2) provided for by a nonprobate transfer that takes effect at the testator’s death?
The pretermitted rule does not apply.
T is married to A, but has an affair with B. T and B have a out of wedlock child C, who T admits is his child.
T left a will that stated his entire estate would go to his wife A. What is the distribution?
Child C is a pretermitted child whose father had no other children. C is entitled to intestate share of all property not given to parent of child. This makes inheritance act as if C’s father died intestate and unmarried. But it would be unfair for C to inherit.
Instead, A (who was entitled to whole estate because of the will) splits half of T’s estate with C.
If there is a codicil to an existing will, does pretermitted child take an intestate share?
No. If there is a codicil then the doctrine of republication of codicil applies: the will speaks and is deemed to have been executed on date of last codicil to will. Therefore, pretermitted child is out of luck because father could have written in child’s share.
A disclaimed interest passes as though:
A disclaimed interest passes as though the disclaiming party died before the decedent. One can disclaim all or part of his inheritance.
Testator’s will gives 1/2 of his estate to his wife and the other 1/2 to his brother. Testator is survived by wife, brother, a daughter born before will was executed, and son born after will was executed.
How should the separate property of the estate be distributed?
The separate property of the estate should be distributed:
- 1/2 to wife
- 1/4 to brother
- 1/4 to son born after will was executed
Wife: one-half of the separate personal property.
Daughter: If the testator made no provision for any of his children living when the will was executed, that child gets nothing.
Son: A pretermitted child takes the share of the estate he would have inherited if the testator had died intestate and unmarried, owning only that portion of his estate not bequeathed to surviving wife.
Only one-half of the remainder passes to the son under the pretermitted child statute, as he would only inherit one-half of the testator’s estate if the testator had died intestate and unmarried.
Brother: In making up this one-fourth share, the brother’s share is reduced to one-fourth.
Testator’s will gives 1/2 of his estate to his wife and the other 1/2 to his brother. Testator is survived by wife, brother, and son born after will was executed.
How should the separate property of the estate be distributed?
The separate property of the estate should be distributed:
- 1/2 to wife
- 1/2 to son
If the testator had no other children, a pretermitted child takes the share of the estate she would have inherited if the testator had died intestate and unmarried, owning only that portion of his estate not bequeathed to the child’s other parent. Here, the bequest to the wife is not diminished by the pretermitted child statute because she was the daughter’s parent. The wife takes one-half of the separate personal property. The other one-half passes to the daughter under the pretermitted child statute, as the daughter would be the testator’s only intestate heir if he had died intestate and unmarried. The brother takes nothing.
