Restrictions on Power of Testation- Protection of the Family Flashcards
Elective Share Statutes
spouse can elect to take in lieu of taking under decedent’s will
Amount of ES
one-third of net probate estate if decedent survived by issue.
One half if no issue.
some states base on duration of the marriage
Property subject to ES
usually NET estate. (probate - creditors)
Notice of ES
Surviving spouse must file a notice of election within a specified period. (6 months)
Right to ES
only the surviving spouse has a right
Effect of Election on Testamentary plan
ES is paid first from assets that would have passed to surviving spouse
Lifetime Transfer & ES
lifetime transfers are subject to the ES if the decedent retained the power to revoke
Pretermitted Child Statutes
protect from accidental omission of a child from will
Exceptions to Pretermitted Child Statutes
1) appears from will that omission was intentional
2) T had other children and devised substantially all to other children besides omitted child
3) T provided the omitted child by transfer outside of the will
Failure to provide for a child believed to be dead
Many states + UPC - solely mistaken on belief that dead then shares in estate
Homestead Allowance
Spouse or dependent children are entitled to occupy the homestead for as long as they choose
Family Allowance
In ADDITION to the amount passing by will, intestacy, or elective share to provide support during probate administration
Exempt Personal Property
certain items of tangible personal property and are in ADDITION to amounts passing by will, intestacy, or elective share
