Revocation by subsequent written instrument, by law Flashcards
How can will #2 revoke will #1?
Express:
Implied: I hereby revoke all previous wills
Will Revival
In California, if you destroy Will #2, Will #1 is NOT automatically revived; ONLY revived if testator manifests that intent
Revocation of Will #2 by subsequent instrument like a codicil
Terms of Codicil must indicate #1 is revived
Revocation by operation of law for omitted child
When there’s an omitted child because of pretermittence or adoption, they get what they would have gotten intestate PLUS any share of inter-vivos trust, whatever is taken out of others’ shares is a revocation by operation of law
Three exceptions to revocation by operation of law for omitted child
1) Not having someone in the will was intentional and in the will (any kids I have get nothing) 2) If they had a kid but they give substantially all their estate to the kid’s parent (b/c obviously the testator wanted the other parent to take care of kids with the $$$) 3) Testator provides for child by transfer outside of the testamentary instrument (like creating an annuity for them after their birth, or a trust)
Revocation by operation of law for omitted spouse
defined as spouse who married AFTER will was executed, and is not provided for in will - spouse gets statutory share if spouse died intestate.
1) half community property (so now all of it)
2) 1/2 quasi-community property
3) statutory share of separate property
What is 1) community property, 2) quasi-community property and 3) separate property
1) Community property is all property acquired during marriage/domestic partnership while domiciled in CA
2) Property acquired before marriage or given through gift/bequest, devise
3) All personal property anywhere, and CA real property acquired while decedent was domiciled elsewhere, but would have been community property absent that.
Exceptions to revocation by operation of law for omitted spouse:
If omission of spouse was intentional AND written in will; decedent provided for spouse outside of testamentary instrument; Omitted spouse signed waiver
Marriage waivers for inheritance
Defined as voluntary relinquishment of known right signed before or during marriage. All probate rights can be waived. requires 1) Writing signed by waiving spouse, 2) full disclosure of decedent’s finances, 3) independent counsel by waiving spouse. EVEN 2/3 ARE ABSENT, IT IS VALID IF THEY KNEW/SHOULD HAVE KNOWN OF FINANCES or waiver was fair (waived $100k devise for $100k cash). Waiver NOT enforced if unconscionable
Omitted domestic partner (definition of domestic partner)
1) Same sex OR opposite sex, one of them is over 62 AND 2) Filed declaration of domestic partnership with secretary of state. Same rights as married.
Final dissolution of marriage/domestic partnership
1) by operation of law revokes devise. (Legal separation does NOT equal divorce)
2) devise reinstated if will remains the same and they get remarried
3) these rules DON’T apply if the will says so (“Even if we get divorced they get some”)
