a.

Omitted Child
i. A parent can refuse to leave anything to their children.
However, a child omitted from a pre-birth willthat is, the
child is born after the will or adopted after the willreceives
her intestate share unless the omission was intentional as
shown in the will, the child is provided for in transfers outside
the will, or the testator had other children and left their estate
to the parent of the omitted child. This principle applies as
well if the testator fails to provide for a child solely because
the testator believes the child is dead or is unaware of the
birth of the child.
a. Social Security: Surviving spouse entitled to workers benefits.
b. Pension and Retirement Accounts: ERISA gives spouse of
employee survivorship rights to pension plan.
c. Homestead: Allowance (Florida has a good one or spouse and
minor children) for certain amount of decedents property to
care for surviving spouse
d. 3 aspects of Floridas homestead laws:
i. Bankruptcy homestead: creditors cant touch your primary
residence up to a certain amount
ii. Property tax homestead: the property appraiser can
appraise your property to have locked in tax even if your
house value increases dramatically
iii. T&E homestead: you have to leave your house to your
surviving spouse and minor children
e. UPC 2-402 homestead:
i. $22,500 set aside from UPC for homestead exemption;
check more on this
ii. Ex. If a family is renting a home and cant afford to keep it
when the spouse dies, then $22,500 is set aside to help.
f. Personal Property Set Aside: Right to tangible personal property
up to a cetain value
i. is set aside like pots and pans, a car, etc. to care for the
surviving family day-to-day.
i. There is usually a list (FLORIDA).
ii. UPC 2-403 puts a monetary amount on personal
property instead = $15,000
g. Family allowance: says that assets are frozen during death but
until the will is probated, a certain amount is given to the family
to survive until they get their inheritance.

iii. This amount fluctuates depending on how they lived

before, how much they have, etc.
iv. UPC=$0 if not given enough facts for family allowance.
v. UPC 2-404
h. Elective Share: choice by the spouse...they look to see what
they take under the will and if it is not enough, they opt for an
elective share.
i. They are not proving the will invalid but they are saying
they dont care about the will and they ask for elective
share.
ii. The spouse may mess with the surviving spouse by putting
in the will assets she may want but it is not enough for the
elective share so she opts for elective share and the
personal rep just gives her whatever assets to satisfy the
elective share.
iii. It is a personal right that only the surviving spouse can
claim.
iv. If the surviving spouse dies before he/she can claim it, the
PR of his/her estate can claim it on their behalf.
v. Limitation on testamentary freedom which is a
fundamental right.
i. 2 theories behind the elective share policy:
i. Partnership theory: both deserve interest in things
earned
ii. Support theory: every spouse has a support obligation of
the other spouse so they dont become a warden of the
state
1. Usually 30% but Tritt says some spouses may need
100% to live so its arbitrary.
j. UPC 2-202 2-207: tries to design it towards communal
property system
i. Adding up all the property of both spouses
ii. Split according to length of marriage (% chart) UPC 2202
iii. Include transfer before marriage like the Fedl tax code.
Looks to substantial control by H or W.
iv. An irrevocable trust, created before marriage, is not
subject to the elective share. If the trust is created after
marriage, it is subject to the elective share.
v. In separate property states, there really isnt marital
property so the UPC goes around this by requiring adding
up all the property together.

k. UPC 2-213: Waiver of Right to Elect and of Other Rights

i. You cannot contract around stuff like the elective share...it
can be waived but it must be in writing, voluntarily, and
cant be unconscionable.
ii. Florida requires subscribing witnesses for waiver and
for post-nup agreements. Fair disclosure is needed. For
pre-nup, no disclosure of your assets is required but still
the writing, signature, witnesses is required.
l. Augmented estate: 50% can go to surviving spouse. TWEN
HANDOUT TO CALCULATE.
m. Good exam question: Compare options under intestacy v.
elective share CANNED ANSWER
i. Under intestacy, the spouse gets a lot so maybe trying to
invalidate the will would be the best option.
ii. Under the elective share, all property is fair game
whereas with intestacy only the probate property is up for
grabs if it comes down to that.
iii. Typically the elective share offers the spouse a smaller
share of a potentially larger pie, while intestacy gives a
spouse a larger share of a smaller pie.
n. Getting non-probate property into the elective share:
i. Illusory transfer test: this test focuses on the control of
the transfer; the client would transfer property during life
but keep control over it; courts would bring back in this
property to deal with the elective share
ii. Intent to defraud test: if you did a lot of non-probate
transfers to get things out of your estate, the court would
look at the mens rea to see if the spouse was trying to
defraud the other spouse
iii. Present donative intent test: this is an objective test that
looks at the donatives state of mind when the transfer
was made; if it was truly a gift then it will not be brought
into the elective share but otherwise it would be
calculated with the elective share
o. Modern Trend:
i. Courts now say things like like a revocable trust,
employment benefits, transfers, etc. are subject to the
elective share. Florida does this.
ii. Estate planners move things around so the elective share
would be small if the spouse wants to cut out the other
spouse so courts try and remedy this.

p. Accidental Disinheritance: Elective share is for purposeful

disinheritance. If it is an accident, the spouse can
i. Hold the will invalid
ii. Take elective share
iii. Try and take under pre-omitted spouse statute (UPC 2301: Entitlement of Spouse, Premarital Will)
1. If someone has a will before they get married, the
spouse can take her intestate or elective share if the
other spouse dies and the will was not redrafted yet.
GOOD TEST QUESTION.
a. ISSUE: It is not necessarily an intestate share
though. Read the UPC 2-301 statute and
COMMENT EXAMPLE. The wife is entitled to
her intestate share but only the portion not
being given to children of previous marriage.
iv. Example:
1. I was divorced and have kids from previous
marriage. After divorce and there might be
problems with that will execution. Get remarried
then dies. What does new wife get? What does she
get under omitted spouse doctrine? Can she prove
will invalid and take full intestate share? Can she
take elective share?
a. Go over the 3 options if there is a will before a
marriage. If elective share is the most then
this is the option she should go with.
b. When talking about omitted spouse, dont say
intestacy but talk about omitted spouse so
you dont get confused. It could be up to an
intestate amount but it will probably be less.
q. Intentional and Unintentional Disinheritance of Children: in any
state except Louisiana, the testator can intentionally disinherit
the child.
i. In LA, a minor child under 23 or a mentally disabled child
cannot be disinherited.
ii. Pretermitted Child Rule: When a will names a child to get
$10K but another child is born and the will is not
redrafted.
1. Child can take which is majority rule (FLORIDA):
only applies to children born after an executed will
and the will is not revised.
iii. UPC 2-302: Omitted Children

1. Any evidence for a failure to provide for a child must

come from the will.
2. If no child is alive when T executes the will, the
afterborn child will take no portion of the estate if
the T divides all the money to the parent of the
omitted child.
3. LOOK AT EXAMPLES IN COMMENTS
iv. Doesnt apply if the parent doesnt know about the kid!
v. Example: HELP!
1. If the T executes a will and has 2 living children A
and B. She gives $7500 to each of them. The T has
another child C after the will is executed and doesnt
update his will.
a. The $7500 x2 = $15000. Each child, A, B, and
C will each get $5,000. Sure, A and B get
ripped off a little but Ts intent is most likely
that each child gets an equal amount so this
goes to the Ts intent.
b. If the will gave $10,000 to A and $5,000 to B.
What would C get? $15,000/3 = $5,000 A kicks
in 2/3 to the amount and B kicks in 1/3 to the
amount so A ends up getting $6,667 and B
gets $3,333 and C gets $5,000. (Confused?)

a.
UPC Witness beneficiary is competent and signing by interested
witness does not invalidate any provision of the will.
b.
GA Witness/beneficiary is competent, but testamentary gift to
witness is void unless there are at least 2 other subscribing witnesses who
are not beneficiaries. Purging statute.???
viii. Interested witnesses Have 3 witnesses because interested
witnesses are normally knocked out so have 3 so that your will isnt
invalidated.
2.
Purging statutes: kick the interested party out of taking under the will
so they can still remain a witness and not invalidate the will
3.
Florida doesnt care about interested witnesses. If someone wants to
argue undue influence then they argue that specifically and not to invalidate
the interested witness.
a. Mistake
i. Mistake in Execution: Where there is a mistake as to the
character of the document, it cannot be probated, since there
is no intent to make a will. Again, this is rare.
ii. Mistake in the Inducement: Where there is a mistake in the
inducement, there is no relief unless both the fact of the
mistake and the disposition the testator would have made but
for the mistake appears on the face of the instrument.