Restrictions on the Power of Testation to Protect the Family Flashcards
What are elective share statutes?
Nearly all states have them. They give the spouse an election to take a statutory share of the decedent’s estate in lieu of taking under the will. The election may only be made by a surviving spouse (or their guardian, if incapacitated).
What is the amount of the elective share?
Variable across states but typically 1/3 of the net probate estate if the decedent is survived by issue and 1/2 if not. A few states base the share on the duration of the marriage.
What property is subject to the elective share?
The net estate (probate estate minus expenses and creditor claims).
What must the surviving spouse do to make the election?
File a notice of election within the state specified period (usually 6 months from the admission of the will to probate)
What is the effect of an election on the testamentary plan?
The elective share is paid first from assets that, but for the election, would have passed to the surviving spouse. After that, abatement rules apply.
Do lifetime transfers by the decedent defeat the elective share?
Yes, unless the decedent retained the power to revoke, invade, consume, or dispose of the principal
What protections are provided by pretermitted child statutes?
Pretermitted child statutes protect children from being accidentally omitted from a parent’s will. Usually a child born or adopted after the will takes an intestate share of the decedent’s estate unless (1) the omission was intention, (2) the testator had other children at the time of execution and devised substantially all the estate to the pretermitted child’s other parent, or (3) the testator provided for the pretermitted child in a transfer outside of the will in lieu of a testamentary gift.
What limits are placed on the pretermitted child’s share if the testator had other children?
UPC and other states: if the testator had other children at the time the will was executed and made a provision for at least one of them, the portion of the estate to which the pretermitted child is entitled to is limited to the provisions made to the other children. The bequests to the other children are reduced but no other beneficiary’s bequest will be reduced. The pretermitted child gets the share they would have received if the testator had included them and given an equal share to all children.
What is the effect of republication or codicil on a pretermitted child?
A child born before the republication/codicil is no longer considered pretermitted.
What if a testator fails to provide for a child because they mistakenly believe them to be dead?
In most states/UPC: if this happens, the child shares in the estate as though they were an after born/adopted pretermitted child.
What if a testator fails to provide for a child because they mistakenly believe them to be dead?
In most states/UPC: if this happens, the child shares in the estate as though they were an after born/adopted pretermitted child.
What are homestead statutes?
Most states have statutes that protect the family residence or farm from creditors’ claims by exempting a certain amount of land that the decedent’s spouse/children are entitled to occupy for as long as they choose despite the disposition of the residence in the decedent’s will.
What is a family allowance?
This provides support during the probate administration and usually takes precedence over expenses other than funeral and administration expenses. It is in addition to the amount passing by will, intestacy or elective share. Some states authorize a specific dollar amount and others authorize a reasonable amount or an amount needed to maintain for a year.
How may a surviving spouse set aside property as exempt?
A surviving spouse or minor children will usually be entitled to petition to set aside certain items of tangible personal property as exempt from claims against the estate. These are in addition to the amounts passing by will, intestacy or elective share
