Restrictions on Testation - Family Protection Flashcards
What are the rules under CA’s “omitted child statute”?
What are the exceptions?
In General –> T CAN choose to disinherit his children. Omitted child statutes are designed to prevent children from being UNINTENTIONALLY omitted from a will
CA statute –> if decedent FAILS to provide for a child born or adopted AFTER the execution of ALL TESTAMENTARY INSTRUMENTS, then child gets his intestate share
EXCEPTIONS:
- decedent’s failure to provide for child:
(i) was INTENTIONAL; and
(ii) intent appears on face of will or revocable trust - decedent provided for child:
(i) by transfer outside the will or revocable trust; AND
(ii) INTENT that transfer be in lieu of testamentary instruments is shown by statements of T, amount of transfer, or other evidence - when the WILL or REVOCABLE TRUST was executed, the decedent had one or more other children and devised substantially all of the estate to the other parent of the omitted child.
REMEMBER –> republication of a will by codicil can result in a change in child’s status w/ respect to omission. A child born before the republication is NOT considered omitted and CANNOT benefit under the statute
With regards to CA’s omitted child statute, what are the rules w regards to proof of intent to disinherit?
General rule –> intention to omit must appear on the FACE of the instrument
Extrinsic evidence –> not admissible to show intent to disinherit
HOWEVER –> extrinsic evidence IS admissible to show LACK of intent to disinherit
NOTE –> ambiguous cases are usually solved in favor of the child
With regards to CA’s omitted child statute, if there is a finding in favor of child, how is his intestate share satisfied?
First, out of property not disposed of by will or trust, if any
If that isn’t sufficient, comes out of gifts given to other beneficiaries in proportion to their interests
What happens if T believes child is dead or is unaware of birth?
child will receive intestate share
What is decedent’s testamentary power over CP ?
Decedent can only gift 1/2 of it. The other 1/2 already belongs to other spouse.
EXCEPTION –> if spouses agree otherwise
What is the rule w regards to spouse’s election?
[come back to p 19]
What is the rule w regards to “forced share in Quasi-CP”?
Probate code 101 provides for a forced share of 1/2 of the decedent’s Quasi-CP.
Distinguish CP and quasi-CP with regards to testamentary power.
W does NOT own undivided 1/2 interest in H’s quasi-CP during H’s life, and has NOT testamentary power in it if she dies first.
Under what circumstances may surviving spouse set-aside inter vivos transfers of quasi-CP?
In CA, the surviving spouse or DP can SET ASIDE transfers during marriage or DP of quasi-CP to the extent of:
(1) 1/2 value if transferee retains propert
(2) 1/2 proceeds, if transferee sold;
(3) if no proceeds, 1/2 value at time of transfer,
- decedent died in CA
- decedent made a transfer of property to someone other than surviving spouse or DP WITHOUT receiving in exchange a consideration of substantial value AND without written consent or joiner of surviving spouse or DP
- Transfer is such that:
(i) decedent retained, at time of death, possession or enjoyment or right to income from property
(ii) decedent retained at time of death a power to revoke, consume, invade or dispose of principal for decedent’s own benefit
(iii) property is held, at time of decedent’s death by decedent and another with right of survivorship
What is the effect if a spouse or DP elects a forced share ?
General rule –> she must renounce all benefits under the will
Result –> “Abatement of gifts” –> generally taken from all beneficiaries either by ordinary rules of abatement (residuary first, then general, then specific gifts), or by “pro rata abatement” (all beneficiaries must kick in).
