Restrictions on the Power of Testation: Protecting the Fam. Flashcards
If the decedent was domiciled in VA at the time of his death, his surviving spouse has the statutory right to what elective share?
One-third of the augmented estate if the decedent was survived by descendants, and one-half of that estate if not.
What must the surviving spouse do to claim an elective share?
File a notice of election within six months from the admission of the will to probate or from appointment of an administrator
How is an elective share satisfied?
First: from all interests that pass or have passed to the spouse
Second: apportioned among all recipients of the augmented estate in proportion to their interests
What does the augmented estate include?
Net probate estate (estate after payment of family allowing, exempt property, debts, and expenses, but before taxes), plus certain third-party transfers, and all donative transfers for the spouse’s benefit.
Which transfers to third parties (not the spouse), if donative, are included in the augmented estate?
1) Any property passing by right of survivorship;
2) transfers in which the decedent retained a life estate;
3) transfer in trust which the decedent retained the power to revoke;
4) gifts in excess of $10K in the year of the decedents death;
5) gifts in excess of $15K in the 5 years preceding the decedent’s death;
6) life insurance, retirement benefits (other than Social Security), etc.
What transfers are not included in the augmented estate?
1) Transfers to third persons before marriage;
2) transfers with the written consent or joinder of the surviving spouse;
3) Property acquired by gift, will, or intestate succession, provided it is maintained as separate property
What is family allowance?
Who decides the amount? Cap?
Does the allowance have priority over all creditors’ claims? Is it reduced by other amounts passing to the spouse/kids?
By statute, the spouse or children whom the decedent was legally obligated to support are entitled to a reasonable allowance for the period that the estate is in probate.
The court or a personal representative
$18K
Yes.
No.
Who is entitled to homestead allowance, and for how much?
How long is a spouse entitled to continue living in the family residence?
The spouse/minor children are entitled to homestead allowance of $15K, which has priority over all claims except family allowance and exempt personal property.
Until her rights to the home have been determined.
Can the right to homestead and family allowance be waived?
Yes, by a written and signed marital or pre-marital agreement (no consideration required)
Can a spouse be disqualified from these allowances?
Yes, if she deserts or ban dons the other spouse until his death
What happens when community property is brought to VA?
Upon death of a married person, property that was acquired while a married couple was domiciled in a community property state is divided, with half going to the surviving spouse, not subject to testamentary disposition or distribution
