Rights of Surviving Spouse Flashcards
What is the effect of marriage following the execution of a will?
The pretermitted spouse is entitled to claim an intestate share UNLESS the will gives the spouse a greater share OR it appears from the will that it was executed in contemplation of marriage.
If the facts of a question involve H and W situation and you are asked to discuss the rights of the surviving spouse to share in the decedent’s estate, you will want to consider . . . (2)
Was a will written before marriage?
Should the spouse claim an elective share of the estate?
How much of the elective estate is an elective share?
1/3
What is a net testamentary estate?
The total value of the estate less funeral expenses, expenses of administration, and allowable creditors’ claims)
An elective estate is equal to the net testamentary estate PLUS these 3 types of lifetime donative transfers to the spouse or to others.
Transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit (e.g., revocable trusts)
D’s undivided interest in property acquired in right of survivorship form (e.g., JTWROS, joint bank accounts); and
Transfers in excess of $3,000 made by D within a year of death.
Elective share is ___ of the elective estate, BUT it is in lieu of . . .
All other transfers the spouse has in D’s property whether passing under the will, by non testamentary transfer (e.g., in trust, through life insurance policy) OR, to the extent the spouse has the property or its proceeds, property which the decedent gave the spouse during life.
The spouse may elect to keep what is left under D’s estate plan (e.g., the house), BUT if she does, she had to . . . .
Reduce the elective share by the value of what she decides to keep.
How can the right to take an elective share be waived?
In writing, after fair disclosure.
