THIRTEENTH CONCEPT: RESTRICTIONS ON TESTAMENTARY DISPOSITIONS Flashcards
What is community property?
All property acquired during marriage or domestic partnership while domiciled in California that is not separate property.
What is separate property?
Property that is acquired before marriage or domestic partnership, and during marriage or domestic partnership by gift, bequest, devise, and descent, together with the rents, issues, and profits thereof.
What is quasi community property?
All personal property wherever situated, and all real property situated in California, acquired by a decedent while domiciled elsewhere that would have been community property if the decedent had been domiciled in this state at the time of its acquisition.
Is the definition of quasi community property the same as quasi community property for divorce?
No
Protection is given to the surviving spouse or domestic partner based upon our community property system. How much property can testator dispose of the community property?
only ½ of the community, because surviving spouse or surviving domestic partner owns the other half
Protection is given to the surviving spouse or domestic partner based upon our community property system. How much property can testator dispose of the quasi-community property?
only ½ of the quasi-community property because surviving spouse or surviving domestic partner owns the other half
In what situation does the widow’s election arise?
Arises when testator attempts to dispose of more than ½ the community property or ½ the quasi-community property.
How does the widows election work?
The survivor may accept the gift given in testator’s will in lieu of his or her statutory right; this is called taking “under the will.”
Or, the survivor can renounce all benefits given in the will and confirm his or her rights to ½ the community property and ½ quasi-community property; this is called taking “against the will.”
Husband’s will states “I give my spouse all my separate property if she allows me dispose of all of our community property to red cross.” What can wife do?
Wife can take under the will and accept the will’s provisions (give up her ½ of the community property and take all of Husband’s separate property), or take against the will (renounce the separate property gift and retain her ½ interest in community and quasi-community property).
Generally, is an inter-vivos transfer by the decedent of the quasi-community property to a third person without consideration allowed? Why?
Yes. An inter-vivos transfer by the decedent of the quasi-community property to a third person without consideration is allowed because the survivor, had a mere expectancy in the quasi community property and not a property interest.
when is an intervivos transfer not allowed?
when the transfer of the quasi-community property is deemed illusory and the surviving spouse or domestic partner invokes the widow’s election.
When is an inter vivos transfer by a decedent illusory?
when the decedent retained some interest or control over the property. The interest can be an ownership interest, a use, or a co-tenancy.
What can the surviving spouse do when the inter vivos gift is deemed illusory?
The surviving spouse or domestic partner may require the transferee to restore ½ of the quasi-community property to the decedent’s estate.
killers who feloniously and intentionally kill the decedent cannot take any benefits under the will or by intestacy what is the proof needed?
[1] A conviction (which includes a plea of guilty) is conclusive.
[2] In all other cases, the probate court determines guilt by a preponderance of the evidence.
What is the consequence of a finding that the killing was felonious and intentional?
Killer is deemed to have predeceased the decedent, and the antilapse statute does not apply (that way the killer’s issue does not take)
