Wills: limits on the testator's power to transfer

Question 1

Rights of the surviving spouse: elective share

Answer 1

In lieu of taking a gift in a will, a surviving spouse can elect to take a forced share: Under the UPC, 50 percent of the augmented estate: pre-marriage and marriage property, which is broader than community property.

The spouse’s elective share will change the gifts to other beneficiaries.

The surviving spouse can waive the right to an elective share if:

(1) The waiver is in writing after a fair disclosure of its contents; and
(2) The spouse is represented by independent legal counsel.

Question 2

Rights of the surviving spouse: omitted spouse

Answer 2

An omitted spouse is entitled to an intestate share unless:

• The omission was intentional;
• The spouse was given property outside of the will in lieu of a disposition in the will; or
• The spouse is party to a valid contract (prenuptial agreement) waiving her right to a share in the estate.

Question 3

Rights of the children: unintentionally omitted children

Answer 3

A child who is omitted from the will can force a share if:

(1) The child is:
(a) born or adopted after the will is created; or
(b) the testator mistakenly believed the child was dead; and
(2) The child is unintentionally omitted from the will.

But share will not be forced if:

(1) the child has been provided for outside of the will; or
(2) the testator:
(a) had other children at the time the will was executed; and
(b) left substantially all of his estate to the omitted child’s parent.

Question 4

Rights of the children: unintentionally omitted children’s share

Answer 4

If the testator had no other children when the will was executed, then the child takes her intestate share.

If the testator has at least one other child living at the time of the execution of the will, and the will devised property to at least one of those children, then:

(1) the omitted child’s share is taken from that portion of property already devised to the other child; and
(2) it must equal the share the other child receives.

Question 5

Rights of the children: advancements

Answer 5

(1) At common law:

Any lifetime gift is presumed to be an advancement of that child’s intestate share.

The child has the burden of showing that it was an outright gift.

(2) Uniform Probate Code:

A gift is only an advancement if:

(a) The decedent declared in a contemporaneous writing that the gift was an advancement, or the heir acknowledged as such in writing; or
(b) A writing indicates that the gift should be take into account in computing the division of property of the decedent’s estate.

Question 6

Rights of the children: calculating the effects of advancements

Answer 6

Under the “Hotchpot” analysis, the effect of advancements is calculated by:

(1) Adding the value of the advancements back into the intestate estate;
(2) Dividing the resulting estate by the number of children taking; and
(3) Deducting the child’s advancement from the child’s intestate share.

Question 7

Slayer rule

Answer 7

A party cannot take property from a decedent when the party was responsible for the decedent’s death.

The UPC and the majority of jurisdictions treat the killer as if she had predeceased the decedent.

Question 8

Disclaimer

Answer 8

Because acceptance of a testamentary gift is presumed, a party must actively disclaim if she wishes not to accept it.

The disclaiming party is treated as if she had predeceased the decedent, and the property is distributed to the next eligible taker.