Intestacy System (Surviving Spouse)

• Author: Browne C. Lewis
• Pages: 65-127

65

Chapter Three: Intestacy System (Surviving Spouse)

3.1 Introduction

When a person dies intestate, the surviving spouse is entitled to a share of the community

property

5

belonging to the decedent and a share of the decedent’s separate property.

6

The law of

intestacy varies from state to state. Therefore the portion of the decedent’s estate that goes to the

surviving spouse may be different.

7

For the sake of uniformity, I have included the Uniform Probate

Section that deals with the inheritance of the surviving spouse. The UPC increases the share that the

surviving spouse takes. Instead of including the spouse in Chapter Two, I chose to discuss the rights

of the surviving spouse in a separate chapter. I selected that approach because I wanted to

emphasize that the spouse is not like other heirs of the decedent. For example, a decedent can easily

disinherit his or her child, but it may be difficult for that person to prevent his or her spouse from

taking a portion of the estate.

8

It is also important to note that the spouse gets the first opportunity

to take from the estate.

9

The spouse has several options. If the decedent leaves a validly executed

will, the spouse can choose to receive his or her portion under the will. However, if the spouse is

not satisfied with the terms of the will or if the spouse is intentionally omitted from the will, the

spouse can renounce the will and take his or her elective share.

10

Some jurisdictions still recognize

dower

11

and cutesy,

12

so the surviving spouse can decide to exercise those rights.

5

States that have a community property system include Arizona, California, Idaho, Louisiana, Neva da, New Mexico,

Texas, Washington and Wisconsin. Community property refers to money that is earned and property that is bought

during the marriage. In Idaho, Louisiana and Texas, income from separate property is community property. The

spouses own community property in undivided, equal shares. Either spouse may dispose of h is or her half of the

community property at death; the other half belonging to the surviving spouse.

6

Separate property refers to property that belongs exclusively to one spouse or the other.

7

Mongold v. Mayle, 452 S.E.2d 444, 447 (W. Va. 1994)(“[t]he purpose behind the elective-shar e provision ………is to

prevent spousal disinheritance in order to ensure that the surviving spouse's contributio n to the acquisition of property

during the marriage is recognized and in order to ensure that the surviving spouse has co ntinuing financial support after

the death of his or her spouse.”)

8

This can be changed by the execution of a valid pre-nuptial agreement. Those types of arrangeme nts are discussed in

family law and property law courses. Thus, the information in this chapter assumes that a relevant pre-nuptial agreement

does not exist.

9

Estate usually refers to a person’s probate estate. However, some jurisdictions have permitted the surviving spouse’s

elective share to apply to the testator’s nonprobate property. See Newman v. Dore, 9 N.E.2d 966 (N.Y. 1937); Dreher v.

Dreher, 634 S.E.2d 646 (S.C. 2006).

10

In the majority of jurisdictions, elective share has replaced dower and curtesy rights. S ee, e.g., 20 Pa. C.S.A. § 2105

(West 2016). UPC § 2-213 permits a surviving spouse to waive his or her elective share in writing.

11

Dower was a common law doctrine that granted a widow a life estate in one-third of all la nd in which her deceased

husband had been seised during their marriage and that was inheritable by the descendants of husband and wife. The

right of dower attaches the moment the man obtains title to land or upon marriage, whichever is later. Dower stays

inchoate until the man dies. After his death, the woman’s dower becomes possessory. During the man’s lifetime, o nce

dower attaches, he cannot sell the land free and clear of the wife’s dower interest. Even a bona fide purchaser cannot cut

off the wife’s dower without her consent. See R.C. § 21.03.02 (West 2016)(Ohio); M.C.L.A. § 558.1 (We st 2016).

12

At common law, a man was given a support interest in his wife’s land referred to as curte sy. Curtesy was similar to

dower, but it contained the following differences: (1) the man did not obtain curtesy if no children were born during the

marriage, and (2) the man’s interest in his deceased wife’s property was a life estate in the land instead of the one-third

interest reserved for surviving wives. In a few states curtesy still exists, but it is pretty much gender -neutral as is dower.

See A.C.A. § 28-11-301(b)(West 2016)(Arkansas); K.R.S § 392.02 (West 2016)(Kentucky).

66

Uniform Probate Code § 2-102. Share of Spouse.

The intestate share of a decedent’s surviving spouse is:

(1) the entire intestate estate if:

(i) no descendant or parent of the decedent survives the decedent; or

(ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse

and there is no other descendant of the surviving spouse who survives the decedent;

(2) the first [$200,000], plus three-fourths of any balance of the intestate estate, if no descendant of

the decedent survives the decedent, but a parent of the decedent survives the decedent;

(3) the first [$150,000], plus one-half of any balance of the intestate estate, if all of the decedent’s

surviving descendants are also descendants of the surviving spouse and the surviving spouse has one

or more surviving descendants who are not descendants of the decedent;

(4) the first [$100,000], plus one-half of any balance of the intestate estate if one or more of the

decedent’s surviving descendants are not descendants of the surviving spouse.

Problems

1. Loretta was married for twelve years to Milton. Loretta and Milton had two children together,

Maggie and Rod. After Loretta divorced Milton, she married Frank. Loretta and Frank had three

children together, Tabitha, Jennifer and Reba. Frank also had a child, Casper, from his prior

marriage. Loretta died survived by Frank, Loretta, Milton, Tabitha, Jennifer and Reba. Loretta left an

estate worth $650,000. Under the UPC, what portion of Loretta’s estate does ″rank get?

2. Woodrow was married to Paige. Woodrow and Paige did not have any children together. Paige

had one child, Bessie from a previous relationship. Woodrow had five children, George, Andrew,

John, Quincy, and Franklin, from his prior marriage. All five of Woodrow’s children and his parents

predeceased him. Woodrow died intestate survived by two grandchildren, Ronald and Bryon, Bessie

and Paige. Woodrow’s probate estate was worth $950,000. Under the UPC, what portion of

Woodrow’s estate does Paige get?

3. Bennett was married to Pauline. Bennett and Pauline had six children, Clara, Bella, Steve, London,

Michael, and Cody. All six of Bennett’s children predeceased him. Bennett died intestate survived by

Pauline and his mother, Elizabeth. Bennett’s probate estate was worth $500,000. Under the UPC,

what portion of Bennett’s estate does Pauline get?

4. Sandra was married to Rosie. Sandra and Rosie adopted two children, Oliver and Grey. Sandra

had two children, Nina and Simon, from a prior relationship. Rosie had two children, Bruce and

Shelia, from her previous marriage. Sandra died intestate survived by Rosie, Oliver, Grey, Nina, and

Simon’s daughter, April. She was also survived by Rosie’s two children Bruce and Shelia. Sandra’s

probate estate was worth $435,000. Under the UPC, what portion of Sandra’s estate goes to Rosie?

67

5. In America, there are variations of two marital property systems, separate property and

community property. The primary difference between the schemes is that, in a separate property

jurisdiction, the spouses own separately all property each obtains; in a community property state, the

spouses own all property acquired from earnings after marriage in equal, undivided shares. See In re

Marriage of Brandes, 192 Cal. Rptr. 3d 1, 9 (Cal. App. 4th 2015).

The two main legal issues that impact the surviving spouse’s ability to inherit are (1) whether

or not the person is a spouse and (2) whether or not the person survived the intestate decedent.

3.2 Definition of Spouse

Traditionally, “spouse” referred to a person who is married to a member of the opposite sex.

In cases where a man who is legally married to a woman or a woman who is legally married to a man

dies intestate, it is easy to determine the person that has the right to take a spouse’s share.

Nonetheless, the definition of spouse has evolved. Consequently, legislatures and courts have

interpreted the term broadly. In this section, I examine factors that may influence a person’s ability

to be legally identified as a spouse.

3.2.1 Putative Spouse

The putative spouse doctrine was designed to protect a person who may have been tricked

into a marriage. For example, a woman may marry a man without knowing that he is already legally

married to someone else. If that woman enters the marriage in good faith and functions as a wife, is

it fair for the law to deny her the advantages of marriage? The woman is given the benefit of the

doubt because the law presumes that she would not have married the man had she known that he

already had a wife. Thus, if the woman learns of the other wife and remains in the marriage, she

loses her status as a putative spouse. The loss of that identity deprives the woman of the ability to

receive any type of spousal support, including an intestate portion of the man’s estate.

M.S.A. § 518.055 Putative Spouse (Minnesota)

Any person who has cohabited with another to whom the person is not legally married in the good

faith belief that the person was married to the other is a putative spouse until knowledge of the fact

that the person is not legally married terminates the status and prevents acquisition of further rights.

A putative spouse acquires the rights conferred upon a legal spouse, including the right to

maintenance following termination of the status, whether or not the marriage is prohibited or

declared a nullity. If there is a legal spouse or other putative spouses, rights acquired by a putative

spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses,

but the court shall apportion property, maintenance, and support rights among the claimants as

appropriate in the circumstances and in the interests of justice.