rights of surviving spouse

Question 1

Rights of surviving spouse

Answer 1

1. Surviving spouse’s right to homestead, exempt property and family allowance
2. Was will written before marriage (pretermitted spouse)?
3. Should spouse claim an elective share of the “elective estate”?

Question 2

Surviving spouse’s right to homestead

Answer 2

Right to live in the home as long as the spouse chooses.

UPC - spouse gets a $15K cash allowance in lieu of homestead

Question 3

Surviving spouse’s right to exempt property

Answer 3

Exempt property: Household furniture, automobile, furnishings, appliances, personal effects in a fixed amount (e.g. $10K)

Question 4

Surviving spouse’s right to family allowance

Answer 4

Reasonable allowance of money out of testate for maintenance of family during administration.

Question 5

Surviving spouse’s rights

Answer 5

homestead, exempt property, family allowance
Typically available in both testate and intestate estates.
They are in addition to the intestate share but are chargeable against share passing under will UNLESS will provides otherwise.
May be waived by written agreement after full disclosure.

Question 6

pretermitted spouse

most states

Answer 6

In most states, marriage after a will has NO EFFECT on the will.

Question 7

pretermitted spouse

UPC

Answer 7

The effect of marriage after execution of will is that the pretermitted spouse is entitled to claim an intestate share UNLESS

1) it appears from the will that omission was intentional
2) T made other provisions for spouse for 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 8

Should spouse claim an elective share of the elective estate?

Answer 8

In all states, the elective estate includes the net testamentary estate. This is the probate estate less exempt property, family allowance, funeral expenses, expenses of administration and allowable creditors’ claims.

Question 9

Elective share

Answer 9

Elective share is a fraction (commonly 1/3rd) of the elective estate BUT interest received by one spouse which are included in the elective estate are treated as if in satisfaction of the elective share.

Question 10

important points on elective share

Answer 10

Elective share is in addition to exempt property, family allowance and homestead (or allowance in lieu of homestead).
May be waived by written K after full disclosure
To claim, surviving spouse must file election w/in a set period of decedent’s death