Limitations on Testamentary Dispositions

Question 1

What is the spousal elective share?

Answer 1

A surviving spouse can decline to take under the will or pursuant to the intestacy statute and instead take an elective share

Question 2

When does a spouse need to exercise their right to take an elective share?

Answer 2

Election must be made within the later of:
1. 9 months after decedent’s death
2. 6 months after the probate of decedent’s will

Question 3

What is the amount of the spousal elective share?

Answer 3

Generally 50% of the marital-property portion of the augmented estate

Question 4

What protections are provided for after-born children?

Answer 4

If a testator does not provide for a child born or adopted after making the will, the UPC protects the children from unintentional disinheritance unless it appears from the will that the failure was intentional

Question 5

What share will an after-born child receive?

Answer 5

An intestate share

Question 6

When will an after-born child receive an intestate share?

Answer 6

If a testator had no child living when the will was executed

Question 7

When will an after-born child not receive an intestate share?

Answer 7

1. the will devised all or substantially all of the estate to the other parent of the omitted child
2. it appears from the face of the will taht testator intended to not provide for the child under the will

Question 8

How will an after-born child’s share be determined where a testator has other children that were included in a will?

Answer 8

If a testator had one or more children living when the will was executed, and the will made a devise to a living child then the after-born child is entitled to share equally in the portion of the testator’s estate devised to the living children

Question 9

How will an after-born child’s share be determined where a testator has other children that were not included in a will?

Answer 9

If a testator had living children at the time of the will’s execution but they receive nothing then the after born child will also receive nothing

Question 10

How may a beneficiary disclaim their property interest in a will?

Answer 10

A beneficiary may refuse to take a devise by filing a disclaimer that:
1. is in writing and signed by the disclaiming party
2. declares the disclaimer
3. describes the interest or power being disclaimed
4. is delivered for filed

Question 11

When is a disclaimer deemed as being effective?

Answer 11

The disclaimer relates back to the date of the decedent’s death

Question 12

How is disclaimed property treated?

Answer 12

Disclaiming party is treated as having predeceased the decedent