Restrictions on Testamentary Transfers: Family Protections Flashcards Preview

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Flashcards in Restrictions on Testamentary Transfers: Family Protections Deck (13)
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1
Q

Surviving Spouse’s Elective Share

A
  • Allows a spouse who has been cut out of a will or whose share has been significantly cut down to elect to take instead a statutorily allocated share of the will
  • SS decides whether to take under the will or use the stattue
2
Q

Intestate Share vs. Elective Share

A

Elective Share

  • Is what spouse gets if she/he has not been give a sufficient amount under the will

Intestate Share

  • Is what spouse gets if there is no wil
3
Q

How much is the elective share?

A

SS may elect to take 1/3 of decedent’s estate

4
Q

Elective Share does not include

A
  1. Property subject to an irrevocable trust
  2. Property that has already been conveyed away with the approval of the surviving spouse, pension or life insurance proceeds

3.

5
Q

How to file to take an elective share

A
  1. Must be in writing
  2. Must be filed within latter of 6 months after decedent’s death OR the close of probate process (whichever comes later)
  3. Must be filed in the orphans court in the county where the dead party was domiciled
6
Q

Effect of taking an elective share

A

If the spouse takes her elective share, s/he disclaims any interest in any of the following property to which s/he may have been entitled under the will or intestacy:

  • property subject to the spouse’s election but not awarded to the spouse;
  • property appointed by the decedent’s exercise of a general or special power of appointment
  • property of any trust created by the decedent during his lifetime
  • annuities, pension, w/ exception of social security
  • community property,
  • personal property and real property owned by the decedent and his spouse by the entirety or jointly, in the proportion that such property represents contributions of the decedent; and
  • all personal property and real property given to the spouse by the decedent during his lifetime that is still owned by the spouse at the time of the decedent’s death
7
Q

Revocation of Elective Share

A

SS can revoke an elective share if done within a reasonable time AND SS did not have clear knowledge of the facts of the facts when she made her choice

8
Q

Who cannot claim elective share?

A
  1. Ex-spouse
  2. If you willfully neglected or deserted the decedent spouse (if 1 year or more prior to death)
9
Q

Waiving Elective Share in Prenup

A
  • Prenuptial agreements that waive an elective share
  • Are enforceable under PA law
  • so long as there was full financial disclosure to the spouse and
  • agreement to waive was essentially equitable
10
Q

Omitted Spouse

A

If the testator marries after making a will, the surviving spouse shall receive:

  • intestate share
  • EXCEPTION:
    • Decedent intentionally left out spouse from will
11
Q

Omitted children living at the time of execution of the will

A
  • Will get no forced share = nothing;
  • disinheritance must be done by express language
  • these children cannot elect against the will
12
Q

Omitted children born after execution of will

A
  • Are entitled to claim their intestate share
  • EXCEPTION:
    • if the omission was intentional
13
Q

Family Exemption

A
  • If a decedent dies domiciled in Pennsylvania, the spouse, or
  • the children who are members of the decedent’s household if there is no spouse,
  • may retain or claim as an exemption either
    • real or personal property,
    • or both,
    • not previously sold by the personal representative, to the value of $3,500

Specific devises or bequests may not be retained or claimed if other assets are available for the exemption