Chapter 8 Section 3

Question 1

elective share

Answer 1

-elective share creates a balance of rights in property between martial partners
-provides for surviving spouse to be entitled to 30% of decedent’s real property owned at the time of death
-can override a will

Question 2

filing elective share

Answer 2

-must be filed with court within 4 months of the date of first public notice of administration of estate
-if the will is litigated, elective share must be filed with the court within 40 days following the termination of litigation
-elective share cannot be sold or transferred, but once the 30% has been transferred, surviving spouse owns in fee simple and can sell or use property

Question 3

descent and distribution

Answer 3

-provide for the passing of property to legal heirs under the law of descent and distribution
-when an individual dies intestate (without a will) the law stands in between the property of the decedent and any possible claimants to distribute fairly

Question 4

personal representative

Answer 4

-court will appoint a personal representative to administer the affairs of the decedent and distribute the assets according to the law of decent and distribution

Question 4

lineal descendants

Answer 4

-all property passes to surviving spouse if there are NO lineal descendants of both spouses
-lineal descendants are persons in direct line to an ancestor such as children, grandchildren, and great-grandchildren
-if there are lineal descendants who are not lineal descendants of both spouses, then the surviving spouse gets one-half of the property, the balance of the property is divided among the lineal descendants

Question 5

homestead property

Answer 5

-any real property owned by the head of a household who resides therein
-includes women or men who live alone
-homestead property can be sold at foreclosure for nonpayment of any lien except a judgement lien against the head of household
-constitutional homestead rights are automatic to whose who qualify and do NOT require the filling of any documents

Question 6

limited by property size not value

Answer 6

-the amount of property protected by homestead rights is limited to one-half acre if the homestead is located within a municipality or to 160 acres if located outside of a municipality
-property value is not considered

Question 7

distribution upon death of the owner

Answer 7

-if the homestead were owned as a separate property of the decedent, the surviving spouse is entitled to a life estate
-however, if there are lineal descendants, they become vested remaindermen
-a related provision entitles the surviving spouse to $1000 worth of personal effects, $10,000 worth of home furnishings, and all automobiles

Question 8

homestead override

Answer 8

-homestead rules override any attempted disposition in a will, with only one exception
-the homestead may be left in fee simple to the surviving spouse if there are no minor children
-homestead rights take precedence over the law of descent and distribution, and elective share

Question 9

homestead abandonment

Answer 9

-if the homestead is abandoned, homestead rights are lost
-these rights are not lost as a result of divorce if there are minor children who continue to live in the property
-both spouses must sign any conveyance or mortgage of homestead property, even if the property is owned as separate property by only one spouse