Restrictions on Testamentary Power (Protection of the Family)

Question 1

What is an Elective Share Statute?

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.

• Amount of Elective Share: The amount varies from state to state, but the typical amount is one-third of the net probate estate if the decedent is survived by issue and one-half if the decedent is not survived by issue.

Question 2

What property is subject to the Elective Share?

Answer 2

The share is usually calculated from the decedent’s net estate (probate estate minus expenses and creditors’ claims).

Some states, however, apply the share fraction to the decedent’s “augmented” estate. The augmented estate includes certain lifetime transfers such as:

1. The decedent’s share of jointly held property that passed by survivorship,
2. Bank accounts now payable to someone other than the surviving spouse
3. Life insurance proceeds not payable to the surviving spouse.

Question 3

What is a Pretermitted Child Statute?

Answer 3

A testator may disinherit their children; pretermitted child statutes protect children from being accidentally omitted.

Potential to Receive a Forced Share: Most states provide a forced share for a child who was born or adopted after the will was executed. Only a few states provide a forced share for a child born or adopted before the will execution.

• Failure to Provide for Child Believed to Be Dead: In many states and under the UPC, if a testator fails to provide in their will for a living child solely because the 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 4

How is the Child’s Forced Share Determined?

Answer 4

Jurisdictions vary as to how they determine the share of a pretermitted child. In many states, the pretermitted child takes an intestate share of the decedent’s estate.

Omitted Child May Be Limited to Bequests to Other Children: Under the UPC and by statute in several non-UPC states, if the testator had other children at the time the will was executed and the 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 the other children. The bequests to the other children are reduced, but no other beneficiary’s bequest is reduced.

• The pretermitted child takes such share of the bequests to the other children as the child would have received had the testator included the child with the children upon whom benefits were conferred under the will, and had given an equal share of such benefits to each child.

Question 5

Under what circumstances does the pretermitted child have NO protection?

Answer 5

Many states withhold a pretermitted child’s forced share in the following circumstances:

1. The testator had other children at the time the will was executed and devised substantially all of their estate to the other parent of the omitted child
2. It appears from the will that the omission was intentional
3. The testator provided for the omitted child by a transfer outside of the will in lieu of a testamentary gift

Question 6

What are Homestead Protections?

Answer 6

Most states have statutes that protect the family residence or farm from creditors’ claims by exempting a certain amount of land. These statutes often provide that the 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 7

What is Family Allowance Protections?

Answer 7

The purpose of the family allowance is to provide support during probate administration, and usually takes precedence over all claims other than funeral and administration expenses. It is in addition to the amount passing by will, intestacy, or elective share.