NY Wills Simultaneous Deaths + Divorce + Pretermitted Children Flashcards
What is the Revised uniform simultaneous death act (RUSDA)?
If two people die within 120 hours or 5 days of each other, even instantly, if there is not proof that one survived more than 120 hours than the other presume we are creating a fiction that each pre-deceased the other, depending on whose property you are distributing
what is the key to RUSDA?
Identify whose estate you are distributing and that person survives if they live for less than 120 hours
What is RUSDA’s effect on jointly owned property?
Jointly held property passes as though each co-owner survived the other.
RUSDA theoretically severs the right of survivorship in cases of jointly-held property.
The property passes as though a tenancy in common was involved, not a survivorship property.
Testator Marries, what happens?
RULE: marriage after will execution has no effect on the validity of the will though it may affect gifts and dispositions under the will.
RATIONALE: NY law provides for a right of election, so that a testator cannot disinherit his spouse.
What happens when testator “unmarries”?
RULE: if the court renders a final decree of divorce, annulment or separation after the execution of the Will, all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law.
what effect does a final decree of divorce separation or annulment have?
you read the will as if the spouse pre-deceased the testator. the decree must be final!
If the couple remarries
all provisions in favor of former spouse are restored
What happens to children who are born AFTER the will is executed.?
Children born or adopted after the will is executed are pretermitted children who are:
not provided for by any settlement AND
neither provided for nor mentioned in the will
POLICY: an after born or adopted child inherits equally after the will.
if no provision is made for any children the pretermitted child inherits nothing
What if the Will does not provide for the children who are born BEFORE will is executed?
If these children get nothing, then the pretermitted child takes nothing, the same as his siblings.
What happens if the testator had NO CHILDREN at the time the Will was executed?
the pretermitted child takes the intestate share
If T’s will provides for different amounts to each child?
Add the different amounts together and divide by total amount of children. E.g. 100 to A, 200 to B, what to C, the pretermitted child? C get (100 +200) /3= 100.
What if T names P (the otherwise pretermitted child) as a beneficiary for his life estate?
Then P does not take as the pretermitted child.
