Restrictions on Power of Testation - Protection of the Family

Question 1

Elective Share Statutes - Amount of Elective Share

Answer 1

• varies from state to state
• typically 1/3 of net probate estate if decedent survived by issue
• 1/2 if decedent not survived by issue
• some states base amount on duration of marriage

Question 1

Elective Share Statutes

Answer 1

• common law marital property states have elective share statutes that give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the decedent’s will

Question 2

Who has the right to election?

Answer 2

• the right is personal to the surviving spouse
  -> only the surviving spouse or the guardian of an incapacitated spouse may make the election
• surviving spouse must file a notice of election w/in a specified period

Question 3

Effect of Election on Testamentary Plan

Answer 3

• elective share is paid first from the assets that, but for the election, would’ve passed to the spouse anyway
• beyond that, abatement rules apply
• life estates are sometimes treated as though the spouse predeceased the testator + remainders are accelerated

Question 4

Lifetime Transfers + Elective Shares

Answer 4

• lifetime transfers by the decedent may be subject to the elective share if decedent retained power to revoke or invade, consume, or dispose of the principal
  -> basically, think this defeats the elective share somewhat (you give during lifetime but keep power to revoke, + that gift counts as the elective share)

Question 5

Pretermitted Child Statutes - General Concept

Answer 5

• protect children from being accidentally omitted
  -> testator can still choose to intentionally disinherit children though

Question 6

Children - Potential to Receive a Forced Shared

Answer 6

• most states provide a forced share for a child born or adopted AFTER will executed
  -> only a few provide forced share for child born or adopted BEFORE will executed
• in many states, if testator fails to provide in their will for a living child solely b/c testator mistakenly believed the child to be dead, the child shares in the estate as though they were an omitted afterborn or after-adopted child

Question 7

Determination of Forced Share

Answer 7

• jurisdictions vary
• in many states, pretermitted child takes an intestate share of decedent’s estate
• under UPC + several non-UPC states, if testator had other children at t will executed + will makes a 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 other children
  -> in other words, you get the same as other children who got stuff in the will
  -> bequests to other children are reduced, but no other beneficiary’s bequest is reduced (basically, the collective bequest of the children get divided into equal shares)

Question 8

Circumstances Usually Providing No Protection for Pretermitted Child

Answer 8

• testator had other children at t will executed + devised substantially all of their estate to the other parent of the omitted child
• omission from will appears intentional
• testator provided for omitted child by a transfer outside of will in lieu of a testamentary gift

Question 9

Codicils - Impact on Pretermitted Children

Answer 9

• republication of a will by codicil can result in a change in child’s status with respect to pretermission
• child born before republication is not considered pretermitted + not entitled to protection of the statute

Question 10

Homestead

Answer 10

• most states have statutes protecting family residence or farm from creditors’ claim
  -> exempt a certain amount of land
• often provide decedent’s spouse or dependent children are entitled to occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s will

Question 11

Family Allowance

Answer 11

• purpose = provide support during probate administration
• usually takes precedence over all claims other than funeral + administration expenses
• IN ADDITION to amount passing by will, intestacy, or elective share
• some states limit allowance to specific $ amount, while others authorize payment of an amount needed to maintain the spouse + children for one yr or a “reasonable amount”

Question 12

Exempt Personal Property

Answer 12

• surviving spouse is usually entitled to petition to set aside certain items of tangible personal property as exempt from claims against the estate except for perfected security interests on the items themselves
• these items are IN ADDITION to the amounts passing by will, intestacy, or elective share