Family Protection Flashcards
What is an elective share?
A surviving spouse in a C/L state is protected through an elective share, or a forced statutory share that is taken out of the decedent spouse’s estate. The surviving spouse can choose this over what they are allocated in the will.
(The percentage that a spouse may take varies by state. For example, in some states, the surviving spouse may receive up to one-half of the decedent’s estate.)
How do you waive the elective share?
Entitlement to an elective share can be validly waived through a premarital or marital agreement entered into before or during the marriage.
When is an omitted spouse allowed to take under UPC?
Under UPC §2-301, if a testator executes a will and subsequently marries, the surviving spouse is entitled to take an intestate portion of the testator’s estate, limited to a share in the testator’s property not devised to the testator’s children.
When is an omitted spouse NOT allowed to take?
(1) It appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse;
(2) The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or
(3) The testator provided for the spouse by transfer outside of the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
Are children–or descendants of the testator–entitled to a specified share of the testator’s estate as an omitted child? Under what circumstances?
It depends on the state, but most likely yes. Most statutes, including the UPC, only provide protection for a child who was born or adopted after the will was executed.
