Module 8: Family Protection

Question 1

Marital property systems

Answer 1

1) separate property (common law)
- England
- philosophy of autonomy/individuality
- most US states

2) community property (civil law)
- philosophy in partnership and sharing
- states: TX, LA, NM, AZ, CA, NV, WA, ID, WI, AK, SD & TN

Question 2

Elective share (forced share)

Answer 2

• all separate property states except GA
• typically provides for surviving spouse to get 1/3 interest in the estate if nothing is left for them (amount depends on statute)
• does not apply to unmarried couples
• would apply to common law married people
• traditionally covers only probate assets, same no matter length of marriage

Question 3

UPC approach to the elective share

Answer 3

• sliding scale (% of share depends on length of marriage)
• minimum share for a spouse (provides $50k supplemental share for spouse whose own assets are below that)
• augmented estate (throw everything in including non probate assets and surviving spouse assets and apply the elective share)

Question 4

Waiving the elective share

Answer 4

Can be waived via prenuptial agreement
- must fit usual standards for prenup
(ie: full disclosure, independent advice, absence of pressure, fairness)

Question 5

Pretermitted children

Answer 5

Children who are accidentally excluded from the will and are not otherwise provided for

Question 6

Pretermitted heirs

Answer 6

children born or adopted after the will is executed