Restrictions on Power of Testation - Protection of the Family Flashcards
Surviving Spouse’s Elective Share
if the decedent was domiciled in VA at the time of their death, their surviving spouse has the right to claim a statutory share of the decedent’s estate.
- the amount of the share is 50% of the value of the marital property portion of the augmented estate.
Marital Property Portion
The marital property portion of the augmented estate is calculated by multiplying the value of the augmented estate by a variable percent based on the length of the marriage between the decedent and the surviving spouse. The % ranges from 3% for a marriage lasting less than one year to 100% for a marriage of 15 years or longer.
How to Claim an Elective Share
To claim an elective share, the spouse must file a notice of election within 6 months from the admission of the will to probate or, if none, from the appointment of the administrator.
The surviving spouse must then file the complaint to determine the elective share no later than six months after the filing of the election.
Who May Elect on Behalf of Spouse
The right to elect is personal to the surviving spouse, and cannot be made by a personal representative if the spouse dies before the election is made.
- If incapacitated, the election may be made by their conservator or agent under the authority of a durable power of attorney.
Augmented Estate
The augmented estate includes:
1) the net probate estate - estate after payment of family allowance, exempt property, debts, and expenses, but before payment of taxes
2) non-probate transfers to third persons,
3) non-probate transfers to the surviving spouse
4) and the surviving spouse’s property and non-probate transfers to others.
What Transfers are Not Included in the Augmented Estate
1) Transfers to third persons before marriage
2) transfers with the written consent or joinder of the surviving spouse
3) property acquired by gift. will, transfer in trust, intestate succession, or any form of transfer provided it is maintained as separate property
Burden of Proof
The party seeking inclusion of a transfer in the augmented estate has the burden of proving that it should be included.
Family Allowance
By statute, the spouse or children whom the decent was legally obligated to support are entitled to a reasonable allowance for the period that the estate is in probate.
- While the court can order a larger or smaller allowance, a personal representative may determine and distribute an allowance not in excess of $24,000 without court approval.
Exempt Personal Property Set Aside
The spouse (or, if none, the minor children) is entitled to select household furniture, furnishings, automobile, appliances, and personal effects, not to exceed $20,000 in value.
**This set-aside has priority over all claims except family allowances.
Homestead Allowance
In addition to the family allowance and exempt property, the surviving spouse (or, if none, the minor children) is entitled to a homestead allowance of $20,000. Has priority over all claims other than family allowance and exempt personal property.
This allowance is in lieu of property passing to the spouse by will or intestacy
Spouse’s Right to Occupy Family Residence
If the spouse files for an elective share, or if the decedent died intestate survived by descendants from an earlier marriage, the spouse is entitled to live in the principal family residence without charge until their rights to the home are determined.
Spouse Who Willfully Deserts or Abandons
If a spouse willfully deserts or abandons the other spouse, and the desertion continues until the abandoned spouse’s death, the deserting spouse is barred of all statutory rights in the decedent’s estate, including elective share, intestate share, exempt property, family allowance, and homestead allowance.
Community Property System
Separate Property consists of:
1) property owned by either spouse before marriage, and
2) property acquired during marriage by gift, will, or inheritance
Uniform Disposition of Community Property Rights at Death Act (“UDCOPRADA”)
The Act applies to property that was acquired while a married couple was domiciled in a community property state and characterized as community property.
– When the first spouse dies, 1/2 of such property is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under VA’s laws of succession.
– The decedent’s 1/2 share of such property (the property to which the Act applies) is not subject to the surviving spouse’s right to elect against the will.
