Restrictions on Power of Testation-Protection of the Family

Question 1

What is an elective share?

Answer 1

Most jurisdictions allow surviving spouses to take a percentage of the decedents probate estate in lieu of taking under the decedent’s will. The elective share is usually 1/3 or 1/2.

Question 2

In what ways does elective share vary?

Answer 2

1. In some jurisdictions the amount depends on whether or not the descendant is survived by children or on how long the marriage lasted.
2. Sometimes the elective share is taken from just the probate estate and sometimes it includes an “augmented share,” which includes certain lifetime transfers.

Question 3

What is a probate estate?

Answer 3

The estate that would pass by intestacy.

Question 4

What does a surviving spouse have to do to take an elective share?

Answer 4

File notice within 6 months after the will is admitted to probate.

Question 5

When are lifetime transfers subject to the elective?

Answer 5

when the grantor-spouse retained power to revoke or invade, consume, or dispose of the principal.

Question 6

What is a pretermined child?

Answer 6

A child born or adopted after the will was executed.

Question 7

In what situations will a pretermined child not take an intestate share?

Answer 7

When

1. It appears from the will that the omission was intentional
2. At the time the will was executed, the testator had other children and devised substantially al of his estate to the other parent of the omitted child, or
3. The testator provided for the omitted child by a transfer outside of the will with the intent that it was in lieu of a testamentary gift

Question 8

What does the pretermined child take?

Answer 8

A share of what was left to the other children that is equal to what they take.

Question 9

What happens when a testator fails to provide for a child he believes to be dead?

Answer 9

That child takes a share as a pretermined child.

Question 10

Are grand children protected as pretermined children?

Answer 10

No.