Pg 20

Question 1

How does it work that a spouse doesn’t get a share of the testator’s estate as an omitted spouse if there’s a contrary intention?

Answer 1

Failure to provide for the spouse was deemed to be intentional since it appeared on the testamentary instrument. I.e.: “I leave everything to Fred, and even if I do marry, I do not want my spouse to take any.“

Question 2

When you are deciding whether or not an omitted spouse can take under an instrument with relation to contrary intent, what is the only thing you can consider?

Answer 2

The language of the will - you cannot consider anything else like writings or statements.

Question 3

How does a spouse not get to take as an omitted spouse if the decedent provided for the spouse by transfer outside of the estate?

Answer 3

If there was a transfer that passed for a testamentary instrument with the intention that the transfer was in lieu of a provision in the will. For this you can consider the statements of the decedent, the amount of the transfer, other evidence or facts that are outside of the face of the will, or the will itself. I.e.: if the decedent left a $1 million life insurance policy with the spouse as the beneficiary instead of giving anything under the will.

Question 4

What is involved in an omitted spouse not getting to take as an omitted spouse if the spouse made a valid agreement waiving that right?

Answer 4

Things like premarital agreement or transmutations stop the spouse from being considered an omitted spouse as long as they were in writing and signed by the waiving spouse, who had an opportunity to get advice from independent counsel, and the agreement was not substantively unfair

Question 5

What is the special abatement scheme for omitted spouse share?

Answer 5

Once you include an omitted spouse’s share, it is likely that there will be an abatement issue. Special rules say the share is first taken from:
– the decedent’s estate that wasn’t disposed of in the will
– then every beneficiary of the will takes a pro rata hit to satisfy the spousal share in proportion to the value they receive under the will

Question 6

How do you calculate the pro rata hit that the beneficiaries of a will take if there is a special abatement issue with regard to an omitted spousal share?

Answer 6

Divide the amount the spouse is entitled to under the will by the total amount of the will. That will give you a percentage, and then you take that percent of every person’s share under the will. I.e.: if the spouse is allowed $200,000 and the total amount of the estate is $250,000, then that equals 80%. So every person’s share under the will is subtracted 80%

Question 7

How is court discretion involved in the special abatement scheme for omitted spousal share?

Answer 7

If the intention of the decedent would be defeated by these rules, then a special provision can be exempted from apportionment and a different apportionment can be made that aligns with the testator‘s intent in order to avoid frustrating it

Question 8

If the testator makes a will that leaves his car to A, $100,000 to B, and the rest to C, then he marries his wife but he doesn’t change his will, and he dies. His estate has a car that is worth $250,000, plus $150,000 in cash as his separate property. If the two were married after all testamentary instruments were executed, and the omitted spouse privilege applies, what happens?

Answer 8

Under the omitted spousal rules, the wife can only take 1/2 of the SP. The estate is valued at $400,000, so the wife would get half of that. Under abatement, the wife would get half of the car [joint title or $125,000] plus half of the $100,000 that was supposed to go to B [$50,000] plus half of C’s residue [$25,000].

Question 9

If a couple gets married before testamentary instruments are executed, are there any special things that would allow an omitted spouse to take?

Answer 9

Yes:

• homestead rights exemption
• family allowance
• elective share in non-CP states

Question 10

What is the homestead rights exemption?

Answer 10

A spouse and minor kids can stay in the family home either indefinitely or for a period of time after death even if the home is willed away. This gives the value of the real property as the principal residence of the decedent and his dependents.

Question 11

What is family allowance?

Answer 11

Payments can be made for living expenses of the spouse and kids during the probate proceeding before distribution of the will. Usually this is a deminimus allowance between $5,000-$20,000. It is usually only given if there are insufficient funds to satisfy creditors and there is a concern that there would be nothing for the kids or the spouse.

Question 12

What is the elective share in non-CP states?

Answer 12

The surviving spouse can choose to take an elective share if he is not satisfied with the gifts under the will. This is jurisdiction dependent. Usually the share is the same as the spouse’s intestate share or some substantial portion of the estate.

Question 13

What is the difference for elective share in non-CP states regarding the UPC?

Answer 13

The share amount depends on the length of the marriage. If it is 15 years, the share is 100%, 10 years it is 60%, and less than a year is 3%

Question 14

How does elective share work in CP jurisdictions?

Answer 14

There is no need for an elective share because the spouse gets half of the CP. But it is still possible for a spouse to choose between taking under the will or against the will. I.e.: if a testator leaves his house to a friend and gives his wife $250,000, but the house is worth $2 million, the wife may fight for her CP share of the house.

Question 15

What is the rationale behind the elective share in non-CP states?

Answer 15

This recognizes that the surviving spouse likely contributed to the accumulation of the decedent’s wealth and makes sure that the surviving spouse is provided for so he doesn’t need support from the state.

Question 16

If you move from a CP state to an SP state, how does that affect property rights?

Answer 16

It doesn’t change the pre-existing property rights of the spouses. CP stays CP unless the spouses agree to convert it into SP.

Question 17

What is the other word for omitted children?

Answer 17

Pretermitted heir

Question 18

If a testator executes a will, and then he later has a child, but the will doesn’t mention a child, and the testator dies, what happens?

Answer 18

Under omitted children, the law treats this as an oversight and provides for the child.

Question 19

What is the point of the omitted children rule?

Answer 19

To prevent unintentional disinheritance

Question 20

How many states have a statute for omitted children?

Answer 20

Most states

Question 21

What is the difference between an omitted child and a pretermitted child?

Answer 21

– omitted: a child that is left out of the will

– pretermitted: a child that is born after execution of the will that was left out of the will

Question 22

What is the rule in California with regard to omitted children?

Answer 22

If a decedent fails to provide in a testamentary instrument for a child that is born or adopted after execution of all the testamentary instruments, the omitted child receives a share in the decedent’s estate that is equal to what he would have taken under intestacy.

Question 23

If a codicil is made after a child was born, and the child is still not mentioned in the codicil, what happens?

Answer 23

The omitted child statute does not apply

Question 24

Is there a cap on the amount that an omitted child can take?

Answer 24

No, technically he could take the entire estate

Question 25

What is the date that controls with regard to an omitted child?

Answer 25

The date of birth, not conception. If the testator is pregnant when she makes a will, the child still qualifies as omitted because the child was not yet born.

Question 26

What is the date that applies for omitted children when the child is adopted?

Answer 26

The date of adoption, not the date of birth

Question 27

If an attorney‘s negligence caused a will to be upset by pretermitted heirs, what can happen?

Answer 27

The attorney can be liable to the devisees for malpractice. To avoid this, attorneys should use language like, “to my issue“ instead of “to A and B“ or specifically say that after-born children are also included.

Question 28

What does the UPC say about disinherited heirs?

Answer 28

Their intestate shares pass as if they disclaimed the gift and they are treated like they predeceased the testator. I.e.: if the will said “nothing to my son“ but $50,000 wasn’t dealt with in the will, so it passes through intestacy, now the son’s child gets it because the son is treated as predeceasing the testator.

Question 29

What are the exceptions to omitted children?

Answer 29

These are situations where a child cannot take his omitted child share:
Dash contrary intention mentioned in the document
– decedent had one or more children and divide substantially all of his estate to the other parent of the omitted child
– decedent provided for the child by transfer outside of the estate with intent that it be in Lou of a provision in the will

Question 30

What does it mean as an exception to the omitted child statute for contrary intention?

Answer 30

If the decedent fails to provide for his child in his will and it was intentional and the intention appeared on the testamentary instrument, then the omitted child statute does not apply

Question 31

If a will says, “not unmindful of my son John, I do not wish to provide for him,“ what does that essentially show?

Answer 31

That the testator did not accidentally leave out his son, the omission was intentional, and so the omitted children’s statute would not apply

Question 32

If a will has a boilerplate provision that leaves out a child seemingly intentionally, what do the courts often do here?

Answer 32

Courts do not like to treat boilerplate provisions as showing the intent to disinherit children

Question 33

What is involved in the exception to the omitted child statute that says that if the decedent had one or more kids and he devises all of his estate to the other parent of the omitted child?

Answer 33

The idea is that the testator already had a child and left most of his estate to the other parent, so it is assumed that he intended the other parent to use some of the assets to raise the child. If another kid is born after the will is made, the assumption is that he wanted that same thing for that kid. But if there were no other children and the will left everything to the other spouse, then a child was born, the exception would not apply and the omitted child would still get his intestate share.