W&T: Wills: Protection of family

Question 1

Pretermitted children

Answer 1

children adopted or born after (but conceived before)are protected against accidental disinheritance in the following manner:

(1) if testator had other children, the pretermitted child will be treated in like fashion;
(2) if testator had no other children, the the after born child is entitled to her intestate share

Question 2

Spouses

Answer 2

In NY, a surviving spouse’s protection from an intentional or accidental disinheritance is through an elective share, which gives the right to choose between a statutorily fixed share and teh amount bequeathed.

Question 3

Elective share

Answer 3

available only to a surviving spouse of a decedent who was domiciled in NY (not divorced spouses, etc.). the share is the amount equal to the greater of $50,00 or one third of the net estate.

Question 4

Property included in the elective share

Answer 4

ES applies to all property owned by the testator at death. The net estate subject to the ES includes:

(1) gifts causa mortis;
(2) totten trusts;
(3) joint bank accounts;
(4) joint property;
(5) lifetime trusts and pensions;
(6) stock payable on death.

Question 5

Family support rights

Answer 5

certain types of property are exempt from distribution (one car, pet food, basic furnishings)