RESTRAINTS ON DEVISE Flashcards
if homestead is improperly devised how does it descend?
Under rules of intestacy but if decedent survived by spouse and one or more descendants, spouse takes a life estate w/ a vested remainder in the descendants
Instead of a life estate what other option does a surviving spouse have?
surviving spouse can elect to take an undivided 1/2 interest in the homestead as TIC with the remaining undivided half in the surviving descendants
If the decedent is not survived by a spouse or minor children, and the homestead is not specifically devised:
homestead will pass through the residuary estate unless there is a disposition to sell the property and use the proceeds as part of the general estate
Family allowance:
- up to $18k given to the surviving spouse or lineal heirs who were supported by the decedent
- needs to be petitioned for
- it is in addition to any amount passing by will, intestacy, elective share, or homestead
Who is a pretermitted spouse?
a spouse who married the decedent after the decedent’s will was executed
What will a surviving pretermitted spouse take?
An intestate share of the testator’s estate (apply abatement rules to satisfy the pretermitted spouse’s share)
The pretermitted spouse statute doesn’t apply if:
(1) waiver in a pre/post nup; (2) the testator made a gift to the spouse in the will in contemplation of marriage; or (3) clear intent not to provide for the spouse
What is the elective share statute?
Gives the surviving spouse to take a statutory share of the estate instead of taking under the decedent’s will; in Florida, elective share is 30% of decedent’s elective estate
What are the procedures for taking an elective share?
notice must be filed within 6 months after the service of notice of administration
What is included in the elective estate?
(1) probate assets;
(2) interest in property held in JTWROS;
(3) Survivorship accounts;
(4) property in revocable trusts created by the decedent;
(5) gifts of more than 15k made by the decedent within a year of death;
(6) interest in property constituting protected homestead;
(7) net cash surrender value of life insurance;
(8) pension death benefits
(note that items 2-8 ARE NOT part of the probate estate)
under the pretermitted child statute:
A child committed from a will who born/ adopted after execution is entitled to an intestate share UNLESS: (1) omission was intentional; (2) received an advancement equal to their intestate share; or (3) testator had other children and left most of his estate to the other parent of the committed child
When doesn’t the pretermitted spouse statute work in favor of the new spouse?
if the testator made a gift in the will to the spouse in contemplation of marriage (spouse has burden to prove the gift was not made in contemplation of marriage)
