Also known as: decedent nonprobate transfers · nonprobate transfers to others · nonprobate transfers · will substitutes
Written by attorneys · grounded in primary & secondary sources — see below
Amounts of property that pass outside probate at the decedent's death to recipients other than the surviving spouse. These amounts are valued as of the decedent's death and included in the augmented estate for purposes of calculating the surviving spouse's elective share. The value is reduced by enforceable claims against the surviving spouse and apportioned among recipients when satisfying an unsatisfied elective-share amount.
Daniel Diaz held a joint bank account with his spouse Destiny Davis immediately before his death. Upon Daniel's death the account balance passes to Destiny outside probate. The value of Daniel's fractional interest is fixed immediately before death for inclusion in the augmented estate calculation under the applicable valuation rule.
Derek Douglas's net probate estate and certain nonprobate transfers pass to recipients other than his surviving spouse Devon Drake. After applying the marital-property portion the elective-share amount remains unsatisfied. The statute directs that the net probate estate and specified nonprobate transfers are applied first and liability is apportioned among their recipients in proportion to the value of their interests.
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After applying the net probate estate and initial nonprobate transfers the elective-share amount owed to Dorothy Daniels is still not satisfied. The remaining nonprobate transfers are then applied so that liability for the unsatisfied balance is apportioned among their recipients in proportion to the value of each recipient's interest.
The value is determined at the decedent's death. For fractional or ownership interests held as joint tenant or co-owner the values are fixed immediately before death.
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The statute requires that the remaining nonprobate transfers be applied next with liability apportioned among recipients in proportion to the value of their interests.
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Yes. The value of property included is reduced by enforceable claims against the surviving spouse before the elective-share calculation is completed.
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…light of settlor’s contemporaneous execution of interrelated will). As one law review commentator has noted, “[t]ransferors use will substitutes to avoid probate, not to avoid the subsidiary law of wills. The subsidiary rules are the product of centuries of legal experience in attempting to discern transferors’ wishes and suppress…