RESTRICTIONS ON TESTAMENTARY DISPOSITIONS Flashcards
Issues:
Spousal/domestic partner protection
Unworthy heirs or beneficiaries
Quasi-Community Property
[1] All personal property wherever situated, and all real property situated in California, acquired by a decedent while domiciled elsewhere that would have been community property if the decedent had been domiciled in this state at the time of its acquisition.
[2] In the absence of death or divorce or termination of domestic partnership, it is treated as separate property of the acquiring spouse or the acquiring domestic partner. [Note that the probate definition for quasi-community property is different from the definition for divorce. For divorce purposes, quasi-community
property is all real property, wherever located. For decedents’ estates purposes, quasi-community property is limited to real property located in California.]
Spousal/Domestic Partner Protection
Protection is given to the surviving spouse or domestic partner based upon our community property system.
Protection is given to the surviving spouse or domestic partner based upon our community property system.
- Protection regarding community property
- Protection regarding quasi-community property
- Widow’s election (which includes a widower and a surviving domestic partner)
- Protection regarding illusory transfers of quasi-community property and the widow’s (or surviving domestic partner’s) election:
Protection regarding community property
Testator can dispose of only ½ of the community
property (surviving spouse or surviving domestic partner
owns the other half).
Protection regarding quasi-community property:
[a] Testator, assuming testator is the spouse or domestic
partner who acquired the quasi-community property, can dispose of only ½ of the quasi-community property
(surviving spouse or surviving domestic partner owns the other half at death of testator).
[b] Note that the non-acquiring spouse or domestic partner has no testamentary power to dispose of the acquiring spouse’s or domestic partner’s quasi-community property during the lifetime of the acquiring spouse or domestic partner.
Widow’s election (which includes a widower and a surviving domestic partner):
[a] Arises when testator attempts to dispose of more than ½ the community property or ½ the quasi-community property.
[b] In such case, the widow (or widower or surviving
domestic partner) may invoke the widow’s election. This
means that:
[c] The survivor may accept the gift given in testator’s will in lieu of his or her statutory right (½ community
property and ½ quasi-community property); this is called
taking “under the will.”
[d] Or, the survivor can renounce all benefits given in the will and confirm his or her rights to ½ the community
property and ½ quasi-community property; this is called
taking “against the will.”
Protection regarding illusory transfers of quasi-community
property and the widow’s (or surviving domestic partner’s)
election:
General rule: An inter-vivos transfer by the decedent (the
acquiring spouse or the acquiring domestic partner) of
the quasi-community property to a third person without
consideration is allowed.
Reason:
The survivor (non-acquiring spouse or domestic partner) had a mere expectancy in the quasi-community property and not a property interest.
Exception to the Protection regarding illusory transfers of quasi-community property and the widow’s (or surviving domestic partner’s) election:
The transfer will not be allowed, however, when the transfer of the quasi-communit property is deemed illusory and the surviving spouse or domestic partner invokes the widow’s election.
The transfer is deemed illusory when the decedent (the
acquiring spouse or acquiring domestic partner) retained some interest or control over the property. The interest can be an ownership interest, a use, or a co-tenancy.
In such case, upon the death of the decedent (the
acquiring spouse or domestic partner), the surviving
spouse or domestic partner may require the transferee to restore ½ of the quasi-community property to the
decedent’s estate.
Unworthy Heirs or Beneficiaries:
Killers
Certain killers cannot take any benefits under the will or by intestacy.
Which killers?
Those who feloniously and intentionally kill the decedent.
Proof needed for Killers:
[1] A conviction (which includes a plea of guilty) is conclusive.
[2] In all other cases, the probate court determines guilt by a preponderance of the evidence.
Consequence of finding that the killing was felonious and intentional:
[1] Killer is deemed to have predeceased the decedent, and the antilapse statute does not apply.
[2] See below for the anti-lapse statute.
- This means that the killer does not take and the issue of the killer do not take
Problem of one joint tenant feloniously and intentionally killing the other joint tenant:
[1] There is a severance of the joint tenancy so that the killer does not have a right of survivorship.
[2] But note, the killer does not lose his or her ½ interest in the property.
Problem of a beneficiary feloniously and intentionally killing the insured:
The killer beneficiary does not take any benefit under the insurance contract
