Rights of Surviving Spouse Flashcards
Surviving Spouse’s Right to Homestead
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
2) exempt property - household furniture, car, furnishings, appliances, personal effects in a fixed amount
3) family allowance - reasonable allowance in money out of estate for maintenance of family during administration
Pretermitted Spouse
In most states, marriage after a will has no effect on the will. BUT, under UPC, the effect of marriage following execution of will is that the pretermitted spouse can claim an intestate share, UNLESS:
1) it appears from the will that omission was intentional
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
Elective Estate
The net testamentary estate - the probate estate less exempt property, family allowance, funeral expenses, expenses of administration and allowable creditor’s claims.
Elective Share
A fraction (commonly one-third) of the elective estate received by surviving spouse if the will does not leave anything for spouse.
Elective share under UPC
The maximum elective share is increased to one-half but the share a spouse actually gets depends on the duration of the marriage. Elective share vests at a rate of about 3 percent a year until it reaches a maximum of 50 percent (after 15 years)
Other important points about elective share:
1) it is in addition to exempt property, family allowance, and homestead
2) it may be waived by written contract after full disclosure
3) to claim, a surviving spouse must file election within a set period of decedent’s death
Pretermitted Children
A child born or adopted after the will was executed.
Pretermitted Children under UPC
Pretermitted children are entitled to take an intestate share UNLESS:
1) it appears from the will that the omission was intentional
2) H left substantially all of his estate to the parent of the pretermitted child; or
3) H provided for the child by transfer outside will and intended the transfer to be in lieu of provision in will.
Children thought to be dead (common law)
No relief for mistake in inducement to make or not to make provision in will unless both mistake and what would have been done but for mistake appear in terms of will
Children thought to be dead (UPC)
If at the time of execution of will, T fails to provide in her will for a living child solely because she believes the child to be dead, the child is treated as pretermitted.
