2 support theory under this alternative to the

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2. Support Theory: under this alternative to the partnership theory, one spouse is entitled to the support of the other spouse. vi. Does the elective share perfectly “convert” marriage under a separate property regime into an economic partnership at death? 1. Community property is an economic partnership at death 2. Elective share can fail the test (see example below) vii. Does SS get one-half of all the assets of the marriage? viii. What happens if the poor spouse dies first? (see case 2 page 523) 1. H owns $500,000 in acquisitions from his earnings and W owns $100,000 from her earnings. If W dies first, she can dispose of only her $100,000, and in most states H will have an elective share in that. If the couple lived in a community property jurisdiction, W could dispose of her half of the $600,000 total by will. a. If a wife dies before her husband, she cannot dispose of any of the marital partnership property titled in her husband’s name; elective share theory fails this test! ix. SUMMARY : 1. Majority : Separate Property States – this is the default jurisdiction for 75
the multiple choice on the final a. Elective Share – only separate property states (left out of a post marriage will , more likely purposeful) (policy = providing for spouse outweighs freedom of disposition) b. Property is owned individually c. Spouse can take elective share to protect from disinheritance if i. Spouse is excluded from will ii. Or is entitled under statute to more than given in the will 1. Statutes vary a. Partnership or support theories of marriage iii. Elective share is usually about 1/3 of the estate iv. Must ELECT to do this NOT automatic d. **Does this elective share apply to nonprobate property (trusts)? If the elective share does not apply to nonprobate property, can the elective share be “planned” around?** VARIES BY JURISDICTION but yes; you can plan around . . . put assets into a trust and leave spouse out. However, look at Sullivan case. i. New statutes and UPC : yes ii. Older statutes : no iii. Some jurisdictions include some nonprobate property by judicial decision. In these cases, courts generally apply tests designed to determine if the deceased spouse used nonprobate transfers to “defraud” the surviving spouse of the elective share e. Lawyers need to be familiar with this so they can warn their clients about how they should get their spouse to sign a waiver or else there is no avoiding this elective share f. Can a SS’s estate that the elective share on her behalf if she died before she got it? i. Majority rule : NO g. Can a guardian petition on behalf of an incapacitated disinherited SS? i. Majority rule: Depends on facts and circumstances, but probably yes ii. Minority rule : A minority of states would have the guardian make the election if it is to the SS’s benefit, mathematically, but mathematically it is pretty much always going to make sense 2. Minority : Community Property States a. No elective share (because you already own half) b. All property acquired during marriage is owned jointly i. Exception: gifts and inheritances (because they are not earned lol) c.

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