FAMILY PROTECTION

Question 1

Elective Share

Answer 1

Statutes which give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will.
The amount varies by state but is typically 1/3 of the net probate estate if the decedent is survived by issue and ½ if the decedent is not survived by issue. Some states base the amount on the duration of the marriage.

Notice of election must be filed by the surviving spouse within a specified period (usually six months from admission of the will to probate). The elective share is paid first from the assets that, but for the election, would have passed to the surviving spouse.

Question 2

Property subject to Election

Answer 2

The share is usually calculated from the decedent’s net estate (probate estate – expenses and creditors’ claims). Some states apply the share fraction to the decedent’s augmented estate, which includes certain lifetime transfers.

Question 3

Homestead

Answer 3

Protects the family residence or farm from creditors’ claims by exempting a certain amount of land. The decedent’s spouse or dependent children are entitled to occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s will.

Question 4

Family Allowance

Answer 4

Purpose is to provide support during probate administration, and usually takes precedence over all claims other than funeral and administration expenses. It is in addition to the amount passing by will, intestacy, or elective share.

Question 5

Exempt Personal Property

Answer 5

A surviving spouse is entitled to petition to set aside certain items of tangible personal property as exempt from claims against the estate except for perfected security interests on the items themselves. This is in addition to the amounts passing by will, intestacy, or elective share.

Question 6

Slayer Statute

Answer 6

One who feloniously and intentionally brings about the death of decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim. This rule disqualifies the killer from taking any interest or benefit, including insurance proceeds, right of survivorship in any property held with the decedent, but does not forfeit his own share. A conviction of murder in any degree is conclusive for purposes of this type of statute. In the absence of such conviction, the court must find that the killing was unlawful or intentional by a preponderance of the evidence before applying the forfeiture rule.