Protection of Spouse and Child Flashcards
2 Kinds of Marital Assets
Elective Share: (Majority): spouses own separately all earnings and acquisitions from earnings during marriage (AKA Forced Share or Statutory Share.)
Community Property (Minority - CA): spouses retain separate ownership of property brought to the marriage, but own all earnings and acquisitions from earnings during marriage in equal, undivided shares
Elective Share
Surviving spouse can elect to take what he/she receives
under the Will or statutorily defined amount (e.g., 1/3 of
the decedent’s probate estate and X portion of
nonprobate transfers)
What JXD Applies when Spouses Move Around?
- Real Property: Law of Situs (the law of the state where the real property is located governs the real property for intestacy issues)
- Personal Property: Law of the marital domicile at the time that personal property is acquired (CA: Quasi-CP)
- Survivor’s Rights: Law of the marital domicile at the death of one spouse
What can Pre Marital Agreements Waive
- Property that would pass from the D by intestacy or by testamentary disposition
- Family Allowance
- Statutory Share of omitted spouse
- Right to be appointed Personal Representative
- Nonprobate transfer
Omitted Child Rule: Born or adopted AFTER execution of will
If a decedent fails to provide for a child born or adopted AFTER the execution of ALL testamentary instruments:
Omitted child receives what they would have received if the decedent had died intestate.
NOTE: This rule applies only to omitted children born after all testamentary instruments executed.
Exceptions to the Omitted Child Rule
Omitted child will NOT receive their share if:
- Decedent intentionally omitted the child from their will & that intent appears in the testamentary instruments, OR
2) Decedent gave all of their estate to the other parent of the omitted child.
3) Decedent provided for the child by a transfer outside of the estate (via their will). The intention that the transfer be in lieu of a provision in the instruments is shown by:
i. The decedent’s statements OR
ii. From the amount of the transfer OR
iii. By other evidence
Omitted Child Rule: Mistake Regarding Living
Children
If the decedent failed to provide for a living child solely because:
1) the decedent believed the child was dead, or
2) was unaware of the child’s birth
The child shall receive the equivalent of his/her intestate share of the decedent’s estate
NOTE: This is the only way an omitted child who was living when the parent executed his/her testamentary instruments can receive a share of that parent’s estate
Order of Satisfying Omitted Child’s Share
First, from the decedent’s estate NOT disposed of by will or trust.
Then, from beneficiaries in the decedent’s will, equally, in proportion to the value they may respectively receive.
BUT if it would conflict with the decedent’s
intent that a beneficiary get a specific gift, the
specific gift can be exempted from the
apportionment and a different
apportionment may be adopted to be consistent
with decedent’s intent
Omitted Spouse
If a decedent fails to provide for their spouse, who married the decedent AFTER the execution of their will, the omitted spouse shall receive a share consisting of the following property:
(a) One-half of CP that belongs to the decedent
(b) One-half of Quasi-CP that belongs to the decedent
(c) A share of the decedent’s SP equal to that which the spouse would have received if the decedent had died intestate, (BUT NOT MORE THAN more than one-half the value of the SP in the estate.)
Omitted Spouse Exception
The spouse shall not receive a share of the estate if ANY of the following is established:
1) Decedent’s failure to provide for the spouse in their will was intentional (apparent from testamentary instruments)
2) Decedent provided for the spouse by transfer outside of the estate passing (via will). The intention that the transfer be in lieu of a provision in the will is
shown by:
- Statements of the decedent,
- The amount of the transfer, or
- By other evidence
(c) The spouse made a valid agreement waiving the right to share in the decedent’s estate (Prenup)
- Each party must be represented by counsel
- Must wait 7 days before signing.
- Must sign more than 7 days before the wedding.
Requirements for intentional omission of a spouse
1) Must be in writing,
2) In the testamentary document, and
3) Must name the spouse (a general disinheritance clause does not cover an omitted spouse)
Order of Satisfying Omitted Spouse’s Share
First, taken from the decedent’s estate not disposed of by will or trust
Then, taken from all beneficiaries of decedent’s testamentary instruments in proportion to the value they may respectively receive.
- VALUED BASED ON DATE OF DECEDENT’S DEATH
BUT if it would conflict with the decedent’s
intent that a beneficiary get a specific gift, the
specific gift can be exempted from the
apportionment and a different
apportionment may be adopted to be consistent
with decedent’s intent
