Presentation on theme: "Today’s topic: rights of spouses and children"— Presentation transcript:
1Today’s topic: rights of spouses and children Can individuals write their spouses out of their estate plans?Does it matter whether they use a will or non-probate transfers, like trusts, to dispose of their assets?You can’t take your money with you, but can you at least make sure it doesn’t go to an estranged spouse?What about descendants?Can they be intentionally omitted from a will?What if they are unintentionally omitted from a will?
2Presidents’ DayGeorge Washington’s willAbraham Lincoln’s will
3Rights of surviving spouse to support Social SecuritySurviving spouse receives worker's monthly benefits.Employee Pension PlansERISA gives spouse of employee survivorship rights to pension plan.HomesteadRight to occupy family home for lifetime (UPC=$22,500).Personal Property Set-AsideRight to tangible personal property up to a certain value (UPC=$15,000).Family AllowanceFor support of surviving spouse during probate (UPC = “reasonable allowance”). Automatic $25,000 in Indiana.Dower and CurtesyLife estate in one-third (dower) or entirety (curtesy) of land (abolished in Indiana).
4Marital property systems Community PropertySeparate PropertyAll property acquired during the marriage is community property, unless both spouses agree to separate ownership.Sharing of acquisitions as equals in marital economic partnership.No automatic sharing of earnings; whatever individual earns is his or hers.Protection against disinheritance provided through elective share.Individual autonomy over acquisitions.
5Community property states MTWYIDWAORNVUTCAAZNDSDNECONMTXOKKSARLAMOIAMNWIILINKYTNMSALGAFLSCNCVAWVOHMINYPAMDDENJCTRIMAMEVTNHAKHI
6Are surviving spouse’s elective share rights based on partnership or support? Under a partnership theory, the elective share should be greater forthe 50-year marriage than the one-week marriageproperty acquired during, rather than before, marriage.Under a support theory, the elective share should be greater fora younger spouse with young childrena surviving spouse with lower incomeGenerally, the elective share does not depend on any of these variables
7Are surviving spouse’s rights based on partnership or support? What if after the testator’s death, the spouse dies before electing a forced share? May the spouse’s estate exercise the right to a forced share?A partnership theory would say yes; a support theory would say noMost states say noCan the elective share be satisfied with a life interest in property held in trust?The support theory would say yes; the partnership theory would say noOnly CT and RI limit the surviving spouse to a life estate
8The elective shareTraditionally applied to probate estate. Can a testator evade the elective share by using revocable trusts or other nonprobate transfers?Courts and legislatures have started to extend the elective share to revocable trusts and other nonprobate assetsThe elective share traditionally was less than the intestate share (one-third versus one-half)With the intestate share, we rely on presumed intent while with the elective share, we override actual intentIn an era of nonprobate assets, the elective share may be greater than the intestate shareSurviving spouse may choose elective share for an intestate decedent
9What were the facts in Sullivan v. Burkin, p.488 Ernest Sullivan died after having transferred his house to a revocable inter vivos trust that would benefit him during his life and two friends after his deathIn his will, he wrote that he intentionally did not make any provisions for his wife and grandsonHis wife claimed that she should be able to reach the house to satisfy her forced share
10Sullivan v. Burkin 460 N.E.2d 572 (Mass. 1984) MaryErnestTrustees(Ernest, then friendsGeorge and Harold)ResidueReal EstateTrust PropertyMary elects to take forced share.HaroldCroninGeorgeCroninQuestions Presented:Is the trust valid without Wills Act formalities?Do the trust assets qualify as part of the “estate of the deceased” for Mary’s elective share?10
11Questions for the court in Sullivan Do we have an invalid will or a valid trust?We have a valid trustIt doesn’t matter that Ernest retained full power over the trust property during his lifetime (pages )
12Questions for the court in Sullivan Do the trust assets qualify as part of Ernest’s estate for purposes of Mary’s elective share?Under clear precedent, the trust assets are not counted, and it would not be fair to apply a new rule retroactivelyHowever, times have changed, and greater recognition has been given to the interests of spousesUnder current law, a divorced spouse has a greater claim than a widowed spouseFor the future, trust assets are considered part of the estate for purposes of the forced share if the decedent created the trust during the marriage and retained a general power of appointment or a power of revocation
13What are the facts in Bongaards, p. 492? In Sullivan, the decedent created the trust—what if a third party created the trust?What are the facts in Bongaards, p. 492?Jean Bongaards held a general lifetime power of appointment over a trust established by her mother (and a limited power of appointment over the remainder)
14Bongaards v. Millen, 793 N.E.2d 335 (Mass. 2003), p.492 JosephineNinaJeanGeorgeExercise of Power of AppointmentDo the trust assets qualify as part of the “estate of the deceased” for George’s elective share?No14
15Why did Bongaards come out differently than Sullivan? If George and Jean had divorced, George would have had a right to a share of the buildingIn Sullivan, the court closed a loophole by which a testator tried to shelter assets and evade the elective shareGeorge tried to enlarge the class of property that would be considered part of the decedent’s estate—Jean’s mother wanted to keep the property in her family, so she set up a trust to do just that.
16Does Bongaards make sense? Under a partnership theory of the forced share, the court’s decision makes sense, just as did the Sullivan court’s decision under the partnership theory.On the other hand, because Jean essentially had full ownership of the property, the UPC and a few states take the position that the trust should be included in the elective share calculation (page 809, note 4).
17Elective shares and nonprobate assets States apply different tests for deciding whether to include nonprobate assets (e.g., illusory transfer test, intent to defraud test, pp )Almost all states count revocable inter vivos trusts in calculating the elective shareIndiana is in the minority except when testators execute a trust in contemplation of their impending death and do so in order to defeat the surviving spouse’s statutory shareDunnewind v. Cook, 697 N.E.2d 485, 489 (1998)
18Elective shares and nonprobate assets, problem 1, page 494 In theory, life insurance policies could be illusory since beneficiaries have no meaningful rights until H dies. Nevertheless, courts rarely hold life insurance illusory since H cannot access the payoff valuePOD accounts could easily be considered illusory since H has complete control (but could be non-illusory if designed for children’s educations and other assets to go to spouse)POD account looks illusory but a joint account does not since the daughter can withdraw from the account—H does not have complete controlA joint tenancy is not illusory—the daughters own a fractional share when it is created
19Elective shares and nonprobate assets You should advise clients to exercise extreme caution in making nonprobate transfers without spousal consent that might have the effect of diminishing the spouse’s elective share (p. 494)
20The elective share: State statutory approaches New YorkDelawareElective Share AmountProperty subject to elective shareGreater of $50,000 or one-third of decedent’s net estate.One-third of the decedent’s net estate.Probate estate and specified nonprobate transfers, such as: gifts made within one year of death; savings account trusts; POD accounts not payable to spouse; lifetime transfers in which decedent retained certain powers.All property includible in the decedent’s gross estate under the federal estate tax law.
21The elective share: Uniform Probate Code 1969 UPCDesigned to prevent the testator from deliberately trying to defeat the right of the surviving spouse to the elective shareIncludes in the estate a schedule of nonprobate transfers.1990 UPC as amended in 2008Designed “to bring elective-share law in line with the partnership theory of marriage.”Includes in the augmented estate a schedule of nonprobate transfers (§2-203(a), §2-205 );Elective share is 50 percent of the marital-property portion of the augmented estate (§2-202)Marital-property portion is based on the length of the marriage (§2-203(b))Elective share reduced by nonprobate transfers and marital assets owned by surviving spouse (§2-209).
22Prenuptial/postnuptial agreements and the elective share You may not be able to evade the elective share rights of your spouse by using nonprobate transfers, but you can ask your spouse to waive elective share rights via a prenuptial or postnuptial agreementPrenuptial agreements permitted in all states; postnuptial in most statesSubject to requirements of fairness
23Reece v. Elliott, 208 S.W.3d 419 (Tenn. App. 2006), p. 503 Plaintiff and Reece execute premarital agreement. Plaintiff had independent counsel. Disclosure of assets, some without values.Plaintiff challenges premarital agreement for lack of disclosure of value of Routh Packing Company stock.Reece dies.Wedding.Nov. 29, 1999Dec. 4, 1999July 5, 2003
24What was the basis for the challenge to the prenuptial agreement in Reece? The decedent didn’t make a full disclosure regarding his assets. He disclosed a substantial stock holding, but not the value of the stock.Why did the court uphold the agreement?The spouse received a fair disclosure of his assets (the decedent disclosed all of his assets, even if not the value of all of them, and she had adequate notice of the nature of his wealth)She had the opportunity to ask questions or investigate further but didn’t because she knew she would have no interest in the assetsShe was represented by independent counsel, and she acknowledged that she understood the agreement
25Reece and prenuptial agreements What if the surviving spouse had not been represented by counsel?Not fatal in most states, but an important consideration in judging whether the agreement is unconscionable.If you’re negotiating one of these agreements, you want to make sure that there is full disclosure of all assets with good faith valuations of each asset and that both parties are represented by independent counsel (pages ).
26Protection of pretermitted spouses We’ve seen that surviving spouses receive protection when decedents intentionally decline to devise property to themWhat happens when a decedent married after executing a will but failed to update the will?States assume that the failure to update was an oversight and that the decedent would have wanted to provide for the spouse. Hence, the surviving spouse receives an intestate share of the estateBut maybe the decedent intentionally failed to update the will, in which case the spouse would be entitled to an elective share rather than an intestate shareWhen does a court conclude that the omission was intentional rather than inadvertent?
27In re Estate of Prestie 138 P.3d 520 (Nev. 2006), p. 516 W.R.MariaW.R. executes, in California, a pour-over will and an inter vivos trust. Neither provide for Maria.RayW.R. amends the inter vivos trust, granting Maria a life estate in his condominium.Maria and W.R. divorce.19871989199420002001Maria and W.R. Prestie marry in Las Vegas, Nevada.W.R. moves from California to Nevada. Maria also moves to Nevada.Maria moves in with W.R. and cares for him.Maria and W.R. marry again.W.R. dies.
28Prestie Was Maria an intentionally omitted spouse? No—there was neither a marriage contract nor any provision in the will either providing for her or manifesting an intent not to provide for herWhat about the amendment of the inter vivos trust a few weeks before they remarried? Wasn’t this like Erickson (p. 345)?The Nevada statute requires language in the willBut as fn 23 recognizes, testators amend their pour-over wills by amending their trusts
29Notes for Prestie, pp. 518-519 What result under the UPC? Under 2-301(a)(3) (p.518), W.R. provided for Maria by “transfer outside the will” when he amended his inter vivos trust (an amendment he described as a “codicil,” fn 22)What if W.R. had included a bequest in the will he executed before marrying Maria?She would not be considered an omitted spouse under the Nevada statute
30Elective share in Indiana Ind. Code § (a) The surviving spouse, upon electing to take against the will, is entitled to one-half (1/2) of the net personal and real estate of the testator. However, if the surviving spouse is a second or other subsequent spouse who did not at any time have children by the decedent and the decedent left surviving a child or children or the descendants of a child or children by a previous spouse, the surviving second or subsequent childless spouse shall upon such election take one-third (1/3) of the net personal estate of the testator plus an amount equal to twenty-five percent (25%) of the remainder of: (1) the fair market value as of the date of death of the real property of the testator; minus (2) the value of the liens and encumbrances on the real property of the testator. In determining the net estate of a deceased spouse for the purpose of computing the amount due the surviving spouse electing to take against the will, the court shall consider only such property as would have passed under the laws of descent and distribution.
31Waiver of right to elect and of other rights: UPC §2-213 (a) The right of election of a surviving spouse…may be waived,… by a written contract, agreement, or waiver signed by the surviving spouse.(b) A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:(1) he…did not execute the waiver voluntarily; or(2) the waiver was unconscionable when it was executed and, before execution of the waiver, he…:(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; … and(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.(d) A waiver of “all rights”, or equivalent language [includes rights that would exist by virtue of intestate succession]
32Rights of descendants intentionally omitted from a will While spouses are protected when intentionally omitted from a will through the elective share, children are not (except in Louisiana)That said, testators invite challenges to their estate plan when they omit children (unless the estate goes to the child’s surviving parent), and juries and judges tend to be sympathetic to the children (p. 520)
33Protection of descendants inadvertently omitted from the will While testators are permitted to deny their children a bequest, the law also protects their children from being left out of the will unintentionallyUsually, the statutes apply to children born or adopted after execution of the willSometimes, though, they also apply to children alive when the will is executedWhen is an omission considered intentional and when is it considered unintentional?
34Gray v. Gray 947 So. 2d 1045 (Ala. 2006), p.528 Mary Rose John Monica RobertJack1981198419892004John executes a will devising his entire estate to his wife Mary.Jack is born.John and Mary divorce. As part of settlement, John creates a trust for Jack.John dies.34
35What was the effect of John’s will after he died? The divorce revoked the provision in the will in favor of Mary, so John’s estate would either pass through intestacy or go to a contingent beneficiaryIf it passed through intestacy, what would happen?The three children would shareSince Jack would have no reason to sue if the estate passed through intestacy, there must be a contingent beneficiaryIt was John’s brother (footnote 28)Jack takes only if he was unintentionally omitted from the will
36Was the omission of Jack unintentional under Alabama law? No. Under provision (a)(2), Jack’s omission is considered intentionalWhat’s wrong with viewing Jack’s situation as an (a) (2) situation?The provision contemplates a situation in which the other parent of the omitted child will provide for the child with the bequest from the decedentIn this case, the other parent will not receive a bequest because of the divorce—the statutory provision assumes that the other parent actually takes under the willThis point is made explicitly in the 1990 UPC, page 531, under (a)(1)
37Would Jack take under the 1990 UPC? No. Under provision (a)(2), Jack’s omission is considered intentional because John had living children when he wrote his will.What would have been a better way for the court to reach the result it reached and which was probably the correct result?Use provision (a)(3) of the Alabama pretermitted child statute (note 1, page 532). John did provide for Jack with the trust. Why didn’t the court go this route?Because it requires an assessment of intent and that becomes more complicated. Was the trust actually intended as a “transfer in lieu of a testamentary provision?”
38Note 3, p. 532Under the second example, C receives $5,000, two-thirds from A and one-third from B—(2(ii) and 2(iv), pages ) (so A takes $6,667, B takes $3,333, and C takes $5,000)Unless the second or third provision of the 1969 UPC is satisfied, C would receive an intestate share—which could be a lot more than A or B would get
39Pretermitted child (1969 UPC) a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:It appears from the will that the omission was intentional;When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; orThe testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably provenAla. Code in Gray (pages )Ind. Code § (a) follows 1969 UPC through (a)(2)
40Pretermitted child (1990 UPC, § 2-302(a)(1)) Except as provided in subsection (b), if a testator fails to provide in his [or her] will for any of his [or her] children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:If the testator had no child living when he [or she] executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.
41Pretermitted child (1990 UPC, § 2-302(a)(2)) Except as provided in subsection (b), if a testator fails to provide in his [or her] will for any of his [or her] children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:If the testator had one or more children living when he [or she] executed the will, and the will [made a bequest] to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator’s estate as follows:
42Pretermitted child (1969 UPC) a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:It appears from the will that the omission was intentional;When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; orThe testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably provenAla. Code in Gray (pages )Ind. Code § (a) follows 1969 UPC through (a)(2)
43Pretermitted child (1969 UPC) a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:It appears from the will that the omission was intentional;When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; orThe testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably provenAla. Code in Gray (pages )Ind. Code § (a) follows 1969 UPC through (a)(2)
44Will of Calvin Coolidge “The White House”WashingtonWill of Calvin Coolidge of Northampton,Hampshire County, MassachusettsNot unmindful of my son John, I give all my estate both real and personal to my wife Grace Coolidge, in fee simple – Home at Washington, District of Columbia this twentieth day December, A.D. nineteen hundred and twenty six./s/ Calvin Coolidge____Signed by me on the date above in the presence of the testator and of each other as witnesses to said will and the signature thereof./s/ Everett Sanders___/s/ Edward T. Clark___/s/ Erwin C. Geiser___