Restrictions on Power of Testation: Protection of the Family Flashcards
What does an elective share statute do?
gives the spouse the choice between a statutory share of the estate in lieu of taking under the decedent’s will.
How much of an estate is given to a surviving spouse under an elective share statute?
1/3 if the decedent is survived by issue, 1/2 if there is no issue.
From what is the elective share taken?
The decedent’s net estate.
Net Estate
the decedent’s estate minus all expenses and creditors’ claims.
How does a spouse elect to take the elective share?
She files a notice of election within six months of the will’s being admitted to probate.
Who else can take an elective share?
No one. Only the surviving spouse.
Can a decedent disinherit her kids?
Yes.
What does a pretermitted child statute do?
It prevents kids born after the execution of a will from being accidentally disinherited.
Under the UPC, from what does the pretermitted child take?
The pretermitted child takes from the gifts to the other kids, assuming there are some, whose gifts are reduced proportionately.
What happens when a testator does not provide for a child in their will because the testator thought the child was dead?
The child is treated as an omitted after-born child and takes an intestate share.
What does a homestead statute do?
allows the decedent’s spouse or dependent children to occupy the homestead for as long as they choose despite the disposition of the residence in the decedent’s will.
What is the purpose of the family allowance?
The family allowance provides support during probate administration and usually takes precedence over all claims other than funeral and administration costs.
Explain the exempt personal property rule
a surviving spouse is entitled to petition the court to allow the release of certain personal property to the surviving spouse and make it free from creditors’ claims with the exception of perfected security interests in the property itself.
Is exempt personal property included in the amounts already received by the spouse, such as amounts passing by will or the elective share?
No, they are in addition to it.
