Restrictions on the Power of Testation--Protection of the Family Flashcards
What is a surviving spouse entitled to statutorily?
Surviving spouse has right to claim statutory share of decedent’s estate, which is 50% of the value of the marital property portion of the augmented estate
* Available whether testate or intestate estates
Procedure for making election
Spouse must file notice of election within six months from admission of the will to probate or, if none, from appointment of administrator
* Then must file complaint to determine elective share no later than six months after the filing of the election
Who may elect on behalf of the spouse?
Right to elect is personal and cannot be made by a personal representative if spouse dies before election is made
* Spouse need only have sufficient capacity to understand their right to elect against the will
How is the “marital portion” amount of the augmented estate calculated?
(1) Augmented estate = Net probate estate + nonprobate transfers + surviving spouse’s property
* “For purposes of the bar exam I would just recognize that nonprobate assets are added back into the augmented estate” (i.e., property passed outside probate, property transferred by decedent during marriage where decedent retained his own rights and property that passed during marriage and during two-year period before decedent’s death)
(2) Multiply by statutory percentage based on marriage (5 years is 30%, 10 years is 60% and 15+ is 100%)
(3) Wife takes 50% of this
What is a family allowance?
By statute, spouse or children whom decedent was legally obligated to support entitled to reasonable allownace for period that estate is in probate
* Court can order smaller amount, but personal representative may determine and distribute allowance not in excess of $24,000 without court approval
* Priority over all creditors’ claims
What is exempt personal property?
In addition to amounts passing to surviving spouse by will, intestate succession, or elective share, spouse (or, if none, minor children) entitled to select household furtnirure, furnishing, automobile, appliances, and personal effects, not to exceed $20,000 in value
* Priority over all claims except family allowance
* Property specifically bequeathed by decedent’s will cannot be selected if other items of sufficient value available
What is a homestead allownace?
Surviving spouse (or if none, minor children) entitled to homestead allownace of $20,000, which has priority over all claims other than family allownace and exempt personal property
* This is in lieu of property passing to spouse by will or intestacy
