Wills — The Surviving Spouses's Share

Question 1

What is the Law of Situs?

Answer 1

The place where the real property is located is the state law that controls the disposition of real property.

Question 2

What are the steps of calculating the SS’s elective share?

Answer 2

Step 1: Calculate the Augmented Estate
a. Calculate the Net Probate Estate
= All things decedent distributed by will or intestacy MINUS debt / funeral expenses.
b. Calculate the nonprobate transfers to others.
= life insurance, inter vivos transfers, etc.
c. Calculate the nonprobate transfers to the SS.
d. Calculate the property of the SS and the SS’s nonprobate transfers to others.
ADD THESE ALL UP TO GET THE AUGMENTED ESTATE

Step 2: Determine the Marital Share
Multiply the AUGMENTED ESTATE by the marital percentage (which depends on the number of years they have been married).

Step 3: Split the Marital Share

Step 4: Satisfy
a. Calculate what the SS is already receiving.
Subtract the value in step 3 by what the SS is already receiving.

 b. Calculate what the SS already owns PLUS nonprobate transfers 
      1. Then multiply this by the Marital Share %. 

 c. Subtract what you got in a. and b1. 
    YOU HAVE NOW DETERMINED THE ELECTIVE SHARE that the SS may force from the dying spouses' estate.