Family Protections Flashcards
Spousal Elective Share
(1) Right to claim: whenever a person dies while legally married and with a will, the surviving spouse has a right to claim 1/3 of the decedent’s probate estate (including amounts held in revocable trusts—though generally valid, such trusts are illusory for elective share purposes), unless the survivor has waived the right. This claim trumps any wish or intent by the testator to provide the
surviving spouse less.
Election by Spouse
a. An elective share claim must be filed by the surviving
spouse within the later of 6 months following the
probate of the will or 8 months after the date of death.
b. If the surviving spouse is incompetent at the death of
the deceased spouse, the election can be made by an
agent under a durable power of attorney or by a
conservator.
c. If the surviving spouse dies during the period in which
the election can be made without having done so, the
right is lost.
Payment, Valuation and Waiver
(3) Payment of elective share: property devised to the surviving spouse satisfies, to that extent, the elective share, but nonprobate property payable to the surviving spouse does not. In paying the elective share, the order of abatement applies.
(4) Valuation of life interest devised to spouse: If probate property is devised to the spouse for life, whether or not a QTIP election is made, the life interest is valued as thought the surviving spouse received a full fee interest.
(5) Waiver: The right of elective share may be waived before or after marriage, if fair disclosure is made, and can be waived or allowed to lapse after the death of the first spouse to die.
Pretermitted (omitted) spouse
(1) The omitted spouse provisions apply only if a testator executed a will prior to marriage, then married, then died without amending or republishing the will. In such cases, the surviving spouse may be elected to an intestate share, unless
a. It appears form the will that the omission was
intentional; OR
b. decedent provided for the spouse by transfer outside
the will with the intent that the transfer be in lieu of
provisions of the will, as shown by statements of the
decedent, the amount of the transfer, or other
evidence.
(2) A spouse omitted from a will who cannot claim as an omitted spouse may still claim an elective share.
(3) The omitted spouse claim must be made within the later of 6 months after the probate of the will or 8 months of death
Pretermitted (omitted) children
Children born after a testator makes his will may claim an amount equal to an intestate share, unless:
(1) it appears from the will that the omission was intentional;
(2) when the will was executed, testator had one or more children and devised substantially all of his estate to his spouse; OR
(3) testator provided for the omitted child by transfer outside the will, and the intent that the transfer be in lieu of testamentary provision for the child is shown by extrinsic evidence (statements of the testator, amount of the transfer, etc.)
