Limits on Testamentary Dispositions Flashcards
Main limits on testamentary dispositions
(1) spouse’s elective share
(2) after-born children
Spouse elective shares
A surviving spouse can decline to take under the will or pursuant to the intestacy statute, and instead to take an elective-share
Timing of elective shares
Election must be made within the later of:
▪ 9 months after decedent’s death, or
▪ 6 months after the probate of decedent’s will
Amount of elective share
Generally, = 50% of the marital-property portion of the augmented estate
Treatment of after-born children
If testator does not provide for child born/adopted after making the will, the UPC protects from unintentional disinheritance unless it appears from will that failure was intentional
3 after-born child scenarios
(1) testator had no child living when will executed
(2) testator had one or more children living when will executed, and will made a devise to a then-living child
(3) testator had living children at time of will execution
After-born children if T had no children at execution
If testator had no child living when will was executed → after-born child receives
an intestate share unless:
▪ The will devised all/substantially all of the estate to the other parent of the omitted child; or
▪ It appears from face of the will that testator intended to not provide for child under the will
After-born children if T had child at execution and was devised to then-living child
If testator had one or more children living when the will was executed, and the will made a devise to a then-living child → after-born child is entitled to share equally in the portion of testator’s estate devised to then-living children
After-born children if T had living children at execution but got nothing
If testator had living children at the time of the will’s execution but they receive nothing → after-born child will get nothing (like other children)
