Restrictions on Power of Testation Flashcards
Protection of the Surviving Spouse - Elective Share Statutes
- Elective share = surviving spouse has a right to a portion of the decedent’s estate regardless of what the will says.
- Elective share statutes give the spouse an election to take a statutory share of the decendent’s estate in lieu of taking under will.
Amount of Elective Share:
* Varies from state to state
* Typically – 1/3 of net probate estate if decedent is survived by issue
* Typically – 1/2 of net probate estate if decedent is NOT survived by issue.
* UPC bases the amount on the duration of marriage. (Percentage increases as more years of marriage pass).
* UPC – 1 year of marriage = 3% of net probate estate.
* UPC – 15+ years = 50% of net probate estate
- Surviving spouse must file notice of election within a specified period, usually 6 months from admission of will to probate.
- Only the surviving spouse (or a guardian of the spouse) can make the election.
- Some states give spouse share of augmented estate, which includes nonprobate assets.
- Augmented Estate includes lifetime transfers, bank accounts now payable to someone other than spouse, life insurance proceeds not payable to the surviving spouse.
Community Property States & Spousal Protections
- No elective share statutes necessary.
- In community property states, the spouse is automatically entitled to half of the marital property.
- Decedent spouse can only give away their half of the marital property or separate property that they own individually.
Protection of Children - Pretermitted Child Statutes
- Pretermitted Children - children that are born or adopted after the will has been executed.
- Few States – provide a forced share for a child born or adopted before the will.
- **Majority States – provide a forced share for the pretermitted child. **
Determination of Forced Share
- Jurisdictions vary aobut how they determine the share of a pretermitted child.
- Majority States – Pretermitted child takes an intestate share of the decedent’s estate.
- Under UPC and several non-UPC states – if testator had other children at time of will execution AND will makes provision for one or more of the children, the portion of the estate to which the pretermitted child is entitled is limited to the provisions made to the other children.
- The bequests to the other children are reduced, but** no other beneficiary’s bequest is reduced**.
- The pretermitted child as if the testator would have included them with the other children who are included in the will.
- The permitermitted child gets equal benefits as the named children.
Circumstances Providing No Protection for Pretermitted Child
- When the entire estate is left to pretermitted child’s other parent.
- Evidence that the omission was intentional.
- Testator has provided for pretermitted children outside of the will in lieu of a testamentary gift.
Homestead Protection
- Homestead statutes protect the family residence or farm from creditors’ claims by exempting a certain amount of land or certain amount of value.
- Statutes provide that surviving spouse and dependent children are entitled to occupy the homestead for as long as they choose despite not receiving title to the house under the will.
Only need to know that this is an option that is possible/available.
Family Allowance Protection
- An allowance of money to provide support during probate administration.
* This is in addition to the amount that passes by will, intestacy, or elective share.
- Some states limit the allowance to a specific dollar amount.
- Some states authorize payment of an amount needed to maintain the spouse and children for one year or a reasonable amount.
Exempt Personal Property Protection
- A surviving spouse is entitled to petition to set aside certain items of tangible personal property as exempt from claims against the estate.
- These items are in addition to amounts passing by will, intestacy, or elective share.
