Limits on Disposition protection of spouse & child

Question 1

What are separate property states?

Answer 1

During life, marriage has no impact on anything; what you earn is yours.

Non-earning spouse has no right to property and cannot dispose of unearned property unless she gets it after spouse. Rights of spouse without property to get property in event of death of propertied spouse

In separate property states, ownership is determined by title.

Question 2

In separate property states, who owns what is earned during marriage?

Answer 2

Whoever is titled owns it.

Title refers to legal ownership of property.

Question 3

What is the entitlement of a surviving spouse in separate property states?

Answer 3

The surviving spouse is entitled to an elective or forced share.

Elective share laws ensure that a spouse cannot be completely disinherited.

Question 4

What is community property?

Answer 4

Spouse is entitled to all earnings during marriage in equal undivided shares.

Each spouse owns ½ property acquired during marriage and can dispose if they die first.

Pre-marriage earnings & property received by gift and inheritance is treated as SEPARATE PROPERTY

Community property laws treat all earnings as jointly owned.

Question 5

In community property states, how are earnings during marriage owned?

Answer 5

Earnings during marriage are owned half and half by each spouse.

This means each spouse has a 50% interest in the earnings.

Question 6

Elective share Can be based on:

Answer 6

● Support model:
● Partnership theory:

Question 7

Support model:

Answer 7

smaller percentage of all property and justifies survivor getting all property up to minimum amount.

MA elective share. More likely to create life estates for spouses

Question 8

Partnership theory:

Answer 8

calls for giving ½ property acquired in a marriage, mirroring community property.

UPC follows this. More likely to give outright ownership

Question 9

Justifying community property

Answer 9

 Marriage is a partnership, we work together to support each other, if X is making money, I am supporting in other ways like cooking (ie making the workers life possible)

Question 10

Justifying separate property

Answer 10

there is the remedy of elective share

support obligation,

Question 11

MA elective share statute MGLA 19§15

Answer 11

• If D left issue: Spouse gets $25k outright plus 1/3 of remaining estate in life estate.
• If D left kindred and no issue: Spouse gets $25,000 outright+1/2 of remaining estate in life estate.
• If D left no Kindred: Spouse gets 1/2 outright (never happens bc there is always kindred)
• just probate property

spouse is not well protected in MA

Question 12

ways to avoid transfer to spouse

Answer 12

• Create an irrevocable trust w/o power of appointment to wife
• Transfer property at life (gift today)
• Any non-probate transfer
• POD provision (Ex. my bank account POD on Kids )
• Life insurance
• Joint tenancy with the children
• Someone else could make a trust for me

Question 13

Implication of sullivan v Burkin

Answer 13

The estate of the deceased for c.191§15 includes assets of revocable inter vivos trust created during marriage that deceased had a general power over by deed or will. Do not consider motive/intent of the spouse

test:
- IRVT created at marragie
- Decedent spouse has general power of appointment

Question 14

according to the MA rule
Is trust property over which decedent spouse had a general power of appointment, included in “the estate of the deceased” subject to elective share** if trust was created by a third party?**

Answer 14

Trust property is not subject to elective share bc the trust was created by a third party and not by decedent spouse.

Limited Sullivan only to assets of trust created during marriage by deceased spouse.

Question 15

elective share majority and minoirty rules

Answer 15

Majority Rule: a revocable trust created by decedent spouse is included in determining surviving spouse’s elective share.

Minority: a revocable trust is not subject to the elective share.

Question 16

UPC elective share (present)
(big picture)

Answer 16

Applies elective share to augmented estate of probate and nonprobate transfers

(1) Brings any transfer where decedent retains right of possession or income into augmented estate

(2) Considers lifetime transfers made to the surviving spouse

(3) Adjusts share based on the length of the marriage, increasing benefit for longer marriage. (1990)

Question 17

UPC 1969 elective share

Answer 17

Surviving spouse is entitled to elective share of 1/3 of augmented estate + non probate transfers made during marraige:

1. Transfers where decedent maintains right of possession;
2. Revokable transfers;
3. Joint tenancies;
4. Transfers over $3k within 2 years of death;
5. Property given and received by spouse at death.

No length of marraige

Question 18

1990 UPC elective share

Answer 18

UPC revised elective share to match community property by increasing % of estate subject to elective share by including length of marriage.
Longer marriage meant greater share.

Added transfers before marriage to the marital estate if decedent retained control over property. (ex parternship interest,

50K supplement

Question 19

2008 UPC Elective Share

Answer 19

The UPC provides for an equal split of marital property, but the proportion of each spouse’s property that is deemed marital, includible in the augmented estate, is phased in based on the length of the marriage. The supplemental elective share amount was also increased to $75,000

Question 20

augmented estate

Answer 20

includes sum of net probate estate plus all probate and nonprobate transfers by both spouses.

Question 21

calculating elective share UPC 1990

Answer 21

You take the percentage(based on lenght of marraige, in chart) –> apply it to the augmentted marital property, and then the surviving spouse takes half.

Question 22

how can a spouse waive their elective share?

Answer 22

via a contract such as a prenup or a postnup

Question 23

test for fair prenup/ postnup

Answer 23

1) voluntary
2) conscionable when executed
3) adequate disclosure of finances and property
4) opportunity to seek representation by counsel

look for being mislead, if not probably ok

Question 24

holding in reece v elliot regarding financial disclosure & prenups

Answer 24

An antenuptial agreement will be enforced even where a party failed to disclose the value of a substantial asset as long as the contesting party was not misled and had an opportunity to discover the value of the asset

Question 25

rights of children to inheirit

Answer 25

Children do not have a right to inherit, they can be intentionally disinherited. (all but LA, and even that is changing) logic is that children, unlike spouses, are not automciatcally accounted for in the intestate share. (courts like to supplement for testators intent)

Question 26

lambreff holding relevant to dishertiting a child

Answer 26

Under Australian law, a person is entitled to claim a benefit if they are left without adequate provision for their proper advancement in life. here child performed correctly as a daughter and was disinherited through no fault of her own.

Question 27

UPC 2-301 premartial wills

Answer 27

1) if there is a premariatal will spouse gets intestate 2) unless evidence to show spouse was intentionally left out, or was provided for elsewhere in the will

Question 28

premarital will & intestate share vs elective share

Answer 28

If there is a premarital will, spouse is entitled to claim intestate share. (to correct testators mistake) if there is evidence that it was intentional spouse then gets elective share (intentional: spouse is accounted for elsewhere, or its clear testator did not want spouse taking from will)

Question 29

prestie ruling in regards to premarital wills

Answer 29

-> the spouse can take intestate, unless 1) marriage contract (prenup) or 2) spouse is provided for in the will 3) makes clear that he did not intend to provide for spouse a spouse who was not included in a premartial will, who is accounted for in an IRVT via amendment, does not count as being provided for" and can take intestate share

Question 30

pretermitted child statutes

Answer 30

account for children born after the creation of the will. subject to rules regarding republication by codicil

Question 31

holding & relevance of Azcune

Answer 31

relevance: creation of codcil after will, which does not include a born child will remove them from taking, even via intestacy further, this case outlines that Malpractice suits by third party beneficiaries are limited to those listed in the will. Since P was not in the will, she lacked standing/privity to sue.(in minority of states)

Question 32

UPC 2-302 omitted children

Answer 32

no siblings child gets what htye would have gotten intestate if siblings, get shares limited to devises given to the other childen