TENTH CONCEPT: REVOCATION BY OPERATION OF LAW

Question 1

What is a Omitted or Pretermitted Child?

Answer 1

A child born or adopted after all testamentary instrument are executed and not provided for in any testamentary instrument.

Question 2

Testamentary instrument includes what?

Answer 2

[i] a will, [ii] a codicil, or [iii] a revocable intervivos trust created by the decedent during decedent’s lifetime.

Question 3

What is the Consequence of finding an omitted child?

Answer 3

the child receives an intestate share of assets decedent owned at death plus the assets held in any intervivos trust.

Question 4

What happens to the other gifts if there is a pretermitted child?

Answer 4

other gifts will have to be abated or reduced.

Question 5

What are the 3 exception under which a pretermitted child will not take?

Answer 5

1. Decedent’s failure to provide for the child in any testamentary instrument was intentional, and that intention appears from any testamentary instrument.
2. At the time of execution of the testamentary instrument, the decedent had one or more children and transferred by will or revocable inter vivos trust substantially all of his estate to the parent of the omitted child.
3. The decedent provided for the child by transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any
   testamentary provision.

Question 6

“I presently have no children, but if I ever do, they are to take nothing.” What result?

Answer 6

The intent to disinherit appears from the will itself. Thus, any after-born child takes nothing.

Question 7

Testator and X have a child, C1. Testator executes a will and leaves substantially all of his estate to X. Testator and X now have C2. Testator dies. What result?

Answer 7

C1 is not pretermitted because C1 was born before the will was executed. Moreover, C2 will take nothing: When the will was executed, Testator already had one child, C1, and gave substantially all of his estate to the parent of the omitted child, X. The plan is clear: X will take financial care of all children that Testator and X have together.

Question 8

After the child is born decedent purchases an annuity for the child. What result?

Answer 8

on these facts the child will not take anything else. Because The decedent provided for the child by transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any
testamentary provision.

Question 9

What is an omitted spouse?

Answer 9

A surviving spouse who married the decedent after the execution of all testamentary instruments and is not provided for in any testamentary instrument.

Question 10

What is the Consequence of finding an omitted spouse?

Answer 10

the omitted spouse receives a statutory share of assets decedent owned at death plus the assets held in any revocable inter vivos trust.

Question 11

What does the omitted spouse receive?

Answer 11

1. The one-half of the community property owned by the decedent at death or in any revocable inter vivos trust (will end up with a 100% because they own the other half)
2. The one-half of the quasi-community property owned by decedent at death or in any revocable inter vivos trust (will end up with 100%)
3. A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without ever having executed any testamentary instrument (will or trust), but in no event is the share to be more than one-half the value of the separate property in the estate.

Question 12

For the omitted spouse to take this statutory share, what happens to the other gifts?

Answer 12

They have to be abated

Question 13

What are the 3 exceptions where an omitted spouse will not get a statutory share of assets decedent owned at death plus the assets held in any revocable inter vivos trust?

Answer 13

1. The decedent’s failure to provide for the spouse in any testamentary instrument was intentional and that intention appears from the testamentary instrument.
2. Decedent provided for the spouse by
   transfer outside of the testamentary instruments with the intention that the transfer be in lieu of any testamentary provision.
3. Omitted spouse signed a waiver

Question 14

Testator’s will states, “I presently am not married, but if I ever do marry, my spouse is to take nothing from my will.” What result?

Answer 14

The intent to disinherit appears from the will itself. Any person testator subsequently marries takes nothing.

Question 15

After decedent and spouse marry, decedent purchases an annuity for the spouse. What result?

Answer 15

In such case, decedent has provided for the spouse in lieu of any testamentary instrument. The spouse does not take anything else.

Question 16

What is a waiver?

Answer 16

A voluntary relinquishment of a known right whether signed before or during marriage.

Question 17

What can be waived by a spouse?

Answer 17

Any and all probate rights can be waived: the right to take a probate homestead, a family allowance, an intestate share, and any other probate transfer rights, including the right to take as an omitted spouse.

Question 18

What are the 3 elements of a waiver?

Answer 18

[1] Waiver must be in writing, signed by the waiving spouse before or during marriage; and
[2] Full disclosure by decedent of decedent’s finances; and
[3] independent council by the waiving spouse

Question 19

if there is no disclosure by the testator or independent counsel by the waiving spouse, the waiver still is enforceable if what?

Answer 19

[i] the waiving spouse had or should have had knowledge of the testator’s finances, or
[ii] if the waiver was in fact fair.

Question 20

Waiving spouse gave up $100,000 worth of rights at the time waiver was executed and received $100,000. They did not have independent council. Is this waiver binding?

Answer 20

This is a fair waiver, they do no need council.

Question 21

But in no event will the waiver be enforced if the waiver is what?

Answer 21

Unconscionable

Question 22

What is a domestic partner?

Answer 22

[1] Partners must be [i] of the same sex, or [ii] of the opposite sex and at least one person is at least 62 years of age, AND
[2] Partners must have filed a declaration of domestic partnership with the Secretary of State.

Question 23

what is the effect of a domestic partnership?

Answer 23

California law gives domestic partners the same rights and obligations as married persons. Consequently, the rules for omitted domestic partners are the same as for omitted spouses.

Question 24

Four rules regarding testamentary gifts for Final Dissolution of Marriage or Domestic Partnership, what are they?

Answer 24

[1] By operation of law, there is a revocation of the devise to the spouse or domestic partner if there is an annulment or final dissolution of marriage, or termination of domestic partnership.
[2] Legal separation does not count.
[3] The devise is reinstated if the will is unchanged and the testator remarries the former spouse, or reestablishes another domestic partnership with the former domestic partner.
[4] These rules do not apply if the will expressly states otherwise