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Rights of spouse
- Social security, pension plans, homestead exemption ($10,000 only in NY), and personal property set-aside (vehicle, farm machinery, personal items, money and property not in excess of $15k)
- greater of $50,000 or one-third of the decedent's net estate (after debt and expenses, but before taxes) + 6% interest beginning 7 months after administrator is appointed.
- Exercised by surviving spouse or conservator of spouse.
- Share includes decedent's estate, intestate distributions, and will substitutes
- Elective share satisfied first from property already received by spouse from estate.
- Calculation - calculate gross estate, then subtract debts, expenses, and exempt property sett-offs. Calculate 1/3 of this amount.
- Statute of limitations: may be exercised btween 6 months after issuance of letters of administration and 2 years from death of decedent.
: rebuttable presumption that omission was mistake. Has right to receive no less than intestate share of deceaed spouse's estate.
Gifts to kids
Advancements: in NY, must be declared an advancement in contemporaneous writing.
Transfers to minors: to a guardian, a custodianship (through creation of a will), or a trusteeship (through creation of a will)
Rights of Children
- Presumption that omission was accidental.
- If no children existed at time will was made - child takes intestate share
- If children existed at time of execution - omitted child shares in portion left to the other children, unless only a nominal amount was left to them that effectively disinherited them, then will take intestate share. If the children receive nothing, then it is presumed testator meant to give nothing to all children, even after borns.
- Intentional omission
- child provided for outside will
- child otherwise provided for or mentioned in the will.
Bars to succession
Disclaimer by inheritor
- must be in writing, executed and acknowlaged; accompanied by affidavit swearing disclaiming party received no consideration; and becomes irrevocable nine months after decedent's death.
- Failure to support