marital property; elective share schemes

Question 1

how do we restrict the freedom of disposition in the marital context

Answer 1

through the forced share to surviving spouses ie you cant disinherit your spouse

Question 2

what is community property apporach (ie the minority apporach)

Answer 2

Ownership of property acquired during the marriage is owned equally by both spouses, unless both agree to separate ownership.

Question 3

whats the rationale behind community property? how are you protected from disinheritance in this approach

Answer 3

rationale –The sharing of acquisitions treats both spouses as equals in a marital economic partnership.

protection– Each spouse is protected against disinheritance by the sharing of property during life.

Question 4

what is separate property jurisdiction (majority)

Answer 4

A spouse who acquires property during the marriage does not share ownership with the other spouse.

Question 5

whats the rationale behind seperate property? how are you protected from disinheritance in this approach

Answer 5

rationale – The lack of sharing provides individual autonomy over acquisitions.

protection – Protection against disinheritance is provided through the elective share.

Question 6

sullivan

Ernest G. Sullivan died with a will that disinherited his wife, Mary A. Sullivan, and left his estate to a revocable trust. Mary sought to include the trust assets in the probate estate for her spousal share.

they had been separated for a long time but never officially divorced so for all legal purposes they are married

the will directs his probate asses to the trustee to the revocable trust (ie pour over will)

mary aruges that she’s the spouse, and the state law says surviving spouses are still entiteld to an elective share

but the state law doesnt say they are entilted to the things held in trust ie non probate assests

issue – should the pie be expanded to include non probate?

Answer 6

court looks at prior case law that denites surviving spouse ability to touch non probate; and thinks they should move away but decides to apply the case law as it stands to mary so she doesnt get anything from the trust, womp womp

but not for mary lol for future cases

Question 7

what is an elective share

Answer 7

a portion of a deceased person’s estate that a surviving spouse can claim instead of what’s left to them in the will. It’s also known as a statutory share, widow’s share, forced share, or election against the will.

Question 8

under the general rule, how much is the elective share?

Answer 8

1/3 of the pie

Question 9

what are the steps for figuring out the elective share under common law

Answer 9

1. what is the pie? 1/3 of the decedent’s augmented estate.
2. how big of a slice does spouse get – this is where the legislature steps in so it depends

Question 10

how does the UPC do the steps for figuring out the elective share

Answer 10

1. what is the pie? probate plus Nonprobate transfers to others;
   Nonprobate transfers to spouse;
   Surviving spouse’s property.
2. how big is the slice? greater of 75k or 50% of the marital-property portion of decedent’s augmented estate. Marital-property portion based on length of marriage

Question 11

why does the upc say that Marital-property portion based on length of marriage.

Answer 11

they are tyring to impose community propery ideals on seperate property states

so the longer the marriage the more wealth

Question 12

do practice probs for elective share