Family Protection Flashcards
Spouse’s forced or elective shares
If a spouse does not like what he or she is given in the will (usually because the will does not include her or gives her minimal assets), she can “elect against” the will. Spouse must survive the testator to do this.
Size of elective share: spouse will receive her elective share, which is a fraction of the estate usually about (1/3) or (1/2) of the augmented estate.
An elective share is not automatic, must be made by a then-living spouse within 6 months.
Waiver of elected share
A spouse can waive the right of election by a prenuptial agreement so long as there was a full disclosure of assets.
BUT a prenuptial agreement waiving
rights a spouse might have does not preclude a surviving spouse from taking a gift that was voluntarily devised by the deceased spouse.
Pretermitted spouse
If a will is written before marriage, the spouse is called a pretermitted spouse. Spouse is entitled to the intestate share unless:
(1) spouse was purposely omitted,
(2) will expresses that it is to be effective notwithstanding any later marriages, or
(3) spouse was provided for by transfers outside of the will and such transfers were intended to replace what she would have received under the will.
Pretermitted child
A pretermitted child is one that is not named in the will because the child was not yet born at the time the will was written.
One can disinherit a child. Children cannot elect against the will.
