Inheritance

Question 1

Inheritance: Spousal Rights: What are spouses entitled to?

Answer 1

1) Social Security Checks
2) Pension Plans
3) Homestead Exception
4) Personal Property Set aside
5) Dower

Question 2

Inheritance: Spousal Rights: 2 theories as to why spouses make claims?

Answer 2

1) Support Theory (husband had duty to support/provide)
2) Partnership Theory (Contribution are equal [even if not financially per se])

Question 3

Inheritance: Spousal Rights: Social Security Checks Rules

Answer 3

• Have to be married 10 years (also divorced)
• Have to elect to receive dead spouses sized social security check.

Question 4

Inheritance: Spousal Rights: Pensions Plans: Rules/Generally

Answer 4

• Funded by Employer, governed by ERISA.
• Spouse must have a survivorship right to be able to take.

Question 5

Inheritance: Spousal Rights: Personal Property set aside: Rule

Answer 5

Surviving Spouse Keeps certain property even with creditors present.

Question 6

Inheritance: Spousal Rights: Dower (refresher)

Answer 6

• Wife gets 1/3 property at death. (non transferable and archaic)

Question 7

• Inheritance: 2 Basic Systems of Marital Property

Answer 7

1) Common Law Separate Property
2) Modern Law Community Property

Question 8

Inheritance: Common Law System of Marital Property Rule

Answer 8

• Separate Property: Spouses ONLY own what is acquired individually
  BUT
• Spouses can’t disinherit spouse and elective share is available for 1/4 of ALL stuff if elected by spouse.

Question 9

Inheritance: Modern Law System of Marital Property Rule

Answer 9

• Community Property: Anything either spouse earns during marriage is co-owned equally by both spouses. (spouses treated as a partnership)
• (Does not apply to property acquired before marriage or specific gifts during marriage like: inheritance)
• (Exception requires that the separate property given be kept separate to apply.
• No Elective Share available.

Question 10

Inheritance: Elective Share: What is it generally?

Answer 10

The protection from disinheritance in separate property states.
- When a serving spouse ends up with less than 1/3 of the dead person’s stuff they can elect for the elective share and take the rest of the 1/3 pro rata from others.

Question 11

Inheritance: Elective Share: Who can claim?

Answer 11

Either spouse may elect if they survive the other (dead) spouse.

Question 12

Inheritance: Elective Share: How big should the share be?

Answer 12

• Usually 1/3
• UPC does it weird

Question 13

Inheritance: Elective Share: Why is it not like intestacy?

Answer 13

Intestacy: Reflects what the deceased would likely want.
Elective Share: Overrides testator’s wants.

Question 14

Inheritance: Elective Share: Why not have a higher share amount?

Answer 14

• Almost everywhere the elective share activates upon marriage, so the 1/3 is to not encourage rushed marriages.

Question 15

Inheritance: Elective Share: How does the UPC determine the amount of the share?

Answer 15

• Sliding Scale
• Longer time married = higher elective share %.
• Combined assets of the couple is considered.

Question 16

Inheritance: Elective Share: How to calculate UPC way?

Answer 16

Add up all stuff the couple has together, then based off the chart determine what % the surviving spouse controls.
(Add and subtract to determine how much should be given under the elective share).
Combined Assets of couple considered.
15 years married = 50% control.

Question 17

Inheritance: Elective Share: What property applies: UPC?

Answer 17

Looks at probate assets, revocable trusts, joint tenancies, gifts made in the last 2 years before death.

Question 18

Inheritance: Elective Share: What property applies: AR?

Answer 18

• “Stuff” was only probate property…a trust could shield your stuff from your spouse.

Question 19

Inheritance: Elective Share: What property applies: Weird states?

Answer 19

• Some states look at each item 1 at a time.
• Some states have tests to see if the deceased spouse was trying to commit fraud.

Question 20

Inheritance: Elective Share: Is a spouse forced to accept?

Answer 20

UPC says no, because it undermines partnership theory.

Question 21

Inheritance: Elective Share: Can the right of having an elective share be waived?

Answer 21

Yes, prenups and postnups.