Limits on Testamentary Freedom: Spousal and Family Protection: every key term you need (+ practice quiz)
25 flashcard terms for Wills and Trusts Topic 4, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
The statutory right of a surviving spouse in a separate property state to renounce the will and claim a fixed fraction of the decedent's estate, protecting against total disinheritance.
Augmented estate
The Uniform Probate Code concept enlarging the base for the elective share to include probate assets, nonprobate transfers, property already given the spouse, and the spouse's own holdings.
Accrual elective share schedule
The Code's sliding scale that increases the spouse's marital property percentage with the length of the marriage, approximating the partnership theory used in community property states.
Partnership theory of marriage
The premise that spouses are economic partners entitled to share what was earned during the marriage, which supplies the modern justification for the elective share and community property rules.
Support theory of marriage
The older rationale that a decedent owes a continuing duty to maintain the survivor, which explains fixed fractional shares and life estate remedies rather than partnership sharing.
Dower
The common law life estate a widow took in a fraction of her husband's inheritable land, largely abolished today because it burdened titles and gave no protection against personal property transfers.
Curtesy
The husband's common law life estate in all of his wife's inheritable land, conditioned in most versions on the birth of issue capable of inheriting, and abolished in modern statutes.
Community property
The marital regime in a minority of states under which earnings and acquisitions during marriage belong equally to both spouses, so each may devise only the half owned at death.
Quasi-community property
Property acquired while domiciled in a separate property state that would have been community property had the couple then lived in the community property state, treated as community at death.
Migrating couple problem
The characterization difficulty that arises when spouses move between separate property and community property jurisdictions, which quasi-community property and elective share statutes attempt to solve.
Waiver of spousal rights
A relinquishment of elective share and other statutory rights by a written agreement, valid if voluntary and supported by fair disclosure of the other spouse's property and financial obligations.
Premarital agreement
A contract signed before marriage that fixes property rights at death or divorce, enforceable in most states absent unconscionability, involuntariness, or a failure of adequate disclosure.
Homestead allowance
A modest statutory sum or interest in the family residence granted to the surviving spouse or minor children with priority over general creditors and over devises in the will.
Family allowance
A court-approved payment for the maintenance of the spouse and dependent children while the estate is administered, taking priority over most creditor claims and testamentary gifts.
Exempt personal property set-aside
The right of a spouse or children to take household furniture, appliances, automobiles, and personal effects up to a statutory value free of estate claims.
Pretermitted spouse
A person who married the testator after the will was executed and who under the Uniform Probate Code takes an intestate share of property not devised to the testator's earlier children.
Omitted child statute
A protection giving a child born or adopted after the will was executed a share, computed differently depending on whether the testator had other children when the will was signed.
Intentional disinheritance of a child
The generally permitted decision to exclude a child, effective in every American state except Louisiana, provided the will shows the omission was deliberate rather than accidental.
Forced heirship
The civil law rule reserving a portion of the estate for children, retained in Louisiana for descendants who are young or permanently unable to care for themselves.
Negative will
A provision expressly disinheriting an heir, given effect by the Uniform Probate Code so that the barred heir is treated as having predeceased even as to intestate property.
Spousal election procedure
The statutory steps for claiming the elective share, generally a filing within a short window after probate or after the decedent's death, sometimes exercisable by a conservator.
Illusory transfer test
A judicial method for reaching lifetime transfers that defeat the elective share, asking whether the decedent retained so much control that the transfer was not real in substance.
Intent to defraud test
An older approach that voids inter vivos transfers made with the purpose of defeating a spouse's statutory share, criticized for depending on hard-to-prove subjective motive.
Spousal share satisfaction order
The sequence in which the elective share is funded, first from the spouse's own assets and transfers already received, then ratably from other recipients of the augmented estate.
Support obligations after death
Continuing claims such as court-ordered child support or a contractual promise in a separation agreement, which bind the estate ahead of voluntary testamentary gifts.