Rights of a Surviving Spouse

Question 1

What is a surviving spouse’s right to homestead, exempt property and family allowance?

Answer 1

In most states, statutes give a surviving spouse, one or more of the following:

1. Homestead: The right to live in the home for as long as the spouse chooses. (Under UPC, spouse gets a $15,000 cash allowance in lieu of homestead.)
2. Exempt property: Household furniture, automobile, furnishings, appliances, personal effects (and other property to extent preceding does not equal allowance) in a fixed amount (e.g., $10,000).
3. Family allowance: Reasonable allowance in money out of estate for maintenance of family during administration.
   * Typically, these benefits are available in both testate and intestate estates. They are in addition to intestate share but are chargeable against share passing under will unless will provides otherwise. They may be waived by written agreement after full disclosure.

Question 2

Does a marriage after a will is written have any effect?

Answer 2

In most states, marriage after a will has no effect on the will. But under the UPC and in a few other states, the effect of marriage following execution of will is that the Pretermitted spouse may claim an intestate share (what would have taken had their been no will) (may have been unintentional)
UNLESS:
1) It appears from the will that omission was intentional (again look to intent)
2) T made other provision for spouse by transfer outside will and the intent that the transfer be in lieu of provision in the will is shown by statements of the testator, the amount of the transfer or other evidence.

Question 3

What is an elected estate or an elected share of an estate?

Answer 3

Statutory provision that a surviving spouse may choose between taking that which is provided in the will of the deceased spouse or taking a statutorily prescribed share of the estate. Such election may be presented if the will leaves the spouse less than he or she would otherwise receive by statute. This election may also be taken if the spouse seeks to set aside a will that contains a provision to the effect that an attempt to contest the will defeats the rights of one to take under the will.