Spouses Elective Share

SPOUSE’S ELECTIVE SHARE AND COMMUNITY PROPERTY CONSIDERATIONSpresented by:Thomas G. Martin, Esq. : 

SPOUSE’S ELECTIVE SHARE AND COMMUNITY PROPERTY CONSIDERATIONSpresented by:Thomas G. Martin, Esq. NBI SeminarIrvine, California June 16, 2010

Agenda : 

Agenda Core Topics: Probate Homestead How to Determine the Elective Share Estate Spousal Rights and Personalty Rights of Election Step-by-Step Procedure How to Satisfy the Elective Share

ProbateHomestead : 

ProbateHomestead

Slide 4: 

Probate Homestead Who Can Claim It? A probate homestead is for the benefit of a surviving spouse and/or the decedent’s minor children. (Prob. Code, § 6521(a) & (b).)

Slide 5: 

Probate Homestead What’s the Point? “The purpose is to protect the family unit against claims of creditors and rights of heirs and legatees.” (Estate of Murray (1982) 133 Cal.App.3d 601, 603.) May be a good idea for insolvent estates or to bypass devisees.

Slide 6: 

Probate Homestead What Will a Court Consider? The needs of the surviving spouse and minor children Liens and encumbrances on the property Claims of creditors Needs of heirs or devisees Intent of the decedent

Slide 7: 

Probate Homestead How Long Can It Last? A probate homestead may not be for a period longer than “the lifetime of the surviving spouse, or, as to a child, beyond its minority.” (Prob. Code, § 6524.) If the court determines the probate homestead should be modified or is no longer appropriate, the court may modify or terminate its order. (Prob. Code, § 6527(a).)

How to Determine the Elective Share : 

How to Determine the Elective Share

Slide 9: 

How to Determine the Elective Share What Is It? The elective share estate is that part of a decedent’s estate that passes to a surviving spouse without necessity of formal administration but which may, upon election, be administered through a formal probate.

Slide 10: 

How to Determine the Elective Share What Can Be Probated by Election? All or a portion of the following: (1) One-half of the community property and one-half of the quasi-community that belongs to the deceased spouse, and the separate property of the deceased spouse. (2) One-half of the community property and one-half of the quasi-community that belongs to the surviving spouse. (Prob. Code, § 13502(a).)

What Are Spousal Rights and Personalty? : 

What Are Spousal Rights and Personalty?

Slide 12: 

What Are Spousal Rights and Personalty? A Surviving Spouse Is Not: A person whose marriage to the decedent has been dissolved or annulled A person whose marriage to the decedent has been dissolved or annulled, but is not recognized as valid in this state A person who remarries following a dissolution or annulment A person who was a party to a valid proceeding ending marital property rights.

Slide 13: 

What Are Spousal Rights and Personalty? Community Property to Surviving Spouse At the death of the first spouse, “one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent.” (Prob. Code, § 100(a).) However, spouses may agree, in writing, to “a non pro rata division of the aggregate value of the community property or on the basis of a division of each individual item or asset of community property, or partly on each basis.” (Prob. Code, § 100(b).)

Slide 14: 

What Are Spousal Rights and Personalty? Separate Property to Surviving Spouse (1) 100% (if the decedent did not leave other heirs) (2) 50% (where decedent leaves only one child or the issue of one deceased child, where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them) (3) 33.33% (where decedent leaves >1 child, where the decedent leaves one child and the issue of ≥ 1 deceased children, where decedent leaves issue of ≥2 deceased children)

Slide 15: 

What Are Spousal Rights and Personalty? Return to Estate Required When: Decedent died domiciled in this state. Decedent made a transfer of the property to a person other than the surviving spouse without receiving consideration of substantial value and without the written consent or joinder of the surviving spouse.

Slide 16: 

What Are Spousal Rights and Personalty? Transfers Subject to Return: A transfer where decedent retained possession, enjoyment, or right to income from, the property A transfer where decedent retained a power, to revoke or to consume, invade, or dispose of the principal for the decedent's own benefit A transfer where property is held at the time of the decedent's death by the decedent and another with right of survivorship.

Slide 17: 

What Are Spousal Rights and Personalty? Personalty The surviving spouse and decedent’s minor children may “remain in possession of the family dwelling, the wearing apparel of the family, the household furniture, and the other property of the decedent exempt from enforcement of a money judgment” at least until 60 days after the filing of the inventory. (Prob. Code, §6500(a) & (b).)

Slide 18: 

What Are Spousal Rights and Personalty? Setting Aside Exempt Property After the inventory has been filed, a petition may be brought for the benefit of the surviving spouse and decedent’s minor children to have certain personal property of the decedent set aside as exempt from enforcement of a money judgment. (Prob. Code, § 6510(a) & (b).)

Slide 19: 

What Are Spousal Rights and Personalty? Family Allowance The surviving spouse, decedent’s minor children, and certain disabled adult children of the decedent may be allowed a “family allowance out of the estate” during the probate administration. (Prob. Code, § 6540(a).)

Rights of Election : 

Rights of Election

Slide 21: 

Rights of Election Election to Administer Property Election to Transfer Property to Trustee Determination of Property Passing to or Belonging to Surviving Spouse

How to Satisfy the Elective Share : 

How to Satisfy the Elective Share

Slide 23: 

How to Satisfy the Elective Share How to Satisfy the Elective Share If the surviving spouse elected to have his or her own community or quasi-community property included within the administration, the Order for Final Distribution will authorize the executor or administrator to distribute the surviving spouse’s own property to the surviving spouse and, additionally, will order distribution of the deceased spouse’s community property, as appropriate, to the surviving spouse.

Slide 24: 

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