Inheritance: Spousal Rights: What are spouses entitled to?
1) Social Security Checks
2) Pension Plans
3) Homestead Exception
4) Personal Property Set aside
5) Dower
Inheritance: Spousal Rights: 2 theories as to why spouses make claims?
1) Support Theory (husband had duty to support/provide)
2) Partnership Theory (Contribution are equal [even if not financially per se])
Inheritance: Spousal Rights: Social Security Checks Rules
- Have to be married 10 years (also divorced)
- Have to elect to receive dead spouses sized social security check.
Inheritance: Spousal Rights: Pensions Plans: Rules/Generally
- Funded by Employer, governed by ERISA.
- Spouse must have a survivorship right to be able to take.
Inheritance: Spousal Rights: Personal Property set aside: Rule
Surviving Spouse Keeps certain property even with creditors present.
Inheritance: Spousal Rights: Dower (refresher)
- Wife gets 1/3 property at death. (non transferable and archaic)
- Inheritance: 2 Basic Systems of Marital Property
1) Common Law Separate Property
2) Modern Law Community Property
Inheritance: Common Law System of Marital Property Rule
- Separate Property: Spouses ONLY own what is acquired individually
BUT - Spouses can’t disinherit spouse and elective share is available for 1/4 of ALL stuff if elected by spouse.
Inheritance: Modern Law System of Marital Property Rule
- Community Property: Anything either spouse earns during marriage is co-owned equally by both spouses. (spouses treated as a partnership)
- (Does not apply to property acquired before marriage or specific gifts during marriage like: inheritance)
- (Exception requires that the separate property given be kept separate to apply.
- No Elective Share available.
Inheritance: Elective Share: What is it generally?
The protection from disinheritance in separate property states.
- When a serving spouse ends up with less than 1/3 of the dead person’s stuff they can elect for the elective share and take the rest of the 1/3 pro rata from others.
Inheritance: Elective Share: Who can claim?
Either spouse may elect if they survive the other (dead) spouse.
Inheritance: Elective Share: How big should the share be?
- Usually 1/3
- UPC does it weird
Inheritance: Elective Share: Why is it not like intestacy?
Intestacy: Reflects what the deceased would likely want.
Elective Share: Overrides testator’s wants.
Inheritance: Elective Share: Why not have a higher share amount?
- Almost everywhere the elective share activates upon marriage, so the 1/3 is to not encourage rushed marriages.
Inheritance: Elective Share: How does the UPC determine the amount of the share?
- Sliding Scale
- Longer time married = higher elective share %.
- Combined assets of the couple is considered.
Inheritance: Elective Share: How to calculate UPC way?
Add up all stuff the couple has together, then based off the chart determine what % the surviving spouse controls.
(Add and subtract to determine how much should be given under the elective share).
Combined Assets of couple considered.
15 years married = 50% control.
Inheritance: Elective Share: What property applies: UPC?
Looks at probate assets, revocable trusts, joint tenancies, gifts made in the last 2 years before death.
Inheritance: Elective Share: What property applies: AR?
- “Stuff” was only probate property…a trust could shield your stuff from your spouse.
Inheritance: Elective Share: What property applies: Weird states?
- Some states look at each item 1 at a time.
- Some states have tests to see if the deceased spouse was trying to commit fraud.
Inheritance: Elective Share: Is a spouse forced to accept?
UPC says no, because it undermines partnership theory.
Inheritance: Elective Share: Can the right of having an elective share be waived?
Yes, prenups and postnups.
