Power to Transfer

Question 1

What are the rights of the surviving spouse?

Answer 1

Surviving spouse is entitled to means of support

• SS and pension plans
• Homestead exemption
• Personal property set asides
• Family allowance
• Elective share

Elective share
- UPC: forced share is 50% the decedent’s augmented estate.

Waiver: Surviving spouse can waive right to elective share if the waiver is in writing after a fair disclosure of its terms and the spouse is represented by independent legal counsel.

Question 2

What are the rules for gifts to testator’s children/

Answer 2

Advancements

• A lifetime gift to a child is treated as satisfying all or part of the child’s interstate share.
• Two views: Common and and UPC
• • Common Law: any lifetime gift is presumed to be an advancement of that child’s intestate share. Child has burden to show that the item was an outright gift.
• -UPC: A gift is an advancement only if the decedent declared in a contemporaneous writing that the gift was an advancement or a writing indicates that the gift should’ve been taken into account in computing the division of property of decedent’s estate.

Calculating effect of advancement (hotchpot)

• Add the value of the advancement back into the interstate estate
• Divide the resulting estate by the number of children taking
• Deduct the child’s advancement from the child’s interstate share.

Omitted Children

• Intentional disinheritance
• Unintentional (has a child and doesn’t amend will) If no other children, child takes share, if at least one child, child takes equal share from portion already devised to other child.

Question 3

What are bars to succession?

Answer 3

Slayer Rule

• Cant take if killed spouse. The killing must have been intentional and felonious to bar the killer from taking.
• UPC allows to prevent lapse or intestate succession

Disclaimer

• Must be in writing, signed and filed with court, or declared to the person in charge of distribution AND identify the decedent, describe the interest, and define the extent of disclaimer.
• Must do so within 9 months oof the decedent’s death.

Elder Abuse
- If convicted, cannot collect.