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Protection Of The Family

The desire of society to protect the spouse and children of a decedent is a major reason both for allowing testamentary disposition of property and for placing limitations upon the freedom of testators.

Surviving Spouse Three statutory approaches have developed to protect the surviving spouse against disinheritance: DOWER or curtesy, the elective share, and COMMUNITY PROPERTY.

Dower or curtesy At common law, a wife was entitled to dower, a life interest in one-third of the land owned by her husband during the marriage. Curtesy was the right of a husband to a life interest in all of his wife's lands. Most states have abolished common-law dower and curtesy and have enacted laws that treat husband and wife identically. Some statutes subject dower and curtesy to payment of debts, and others extend rights to personal property as well as land. Some states allow dower or curtesy in addition to testamentary provisions, though in other states dower and curtesy are in lieu of testamentary provisions.

Elective share Although a testator can dispose of his property as he wishes, the law recognizes that the surviving spouse, who has usually contributed to the accumulation of property during the marriage, is entitled to a share in the property. Otherwise, that spouse might ultimately become dependent on the state. For this reason, the elective share was created by statute in states that do not have community property.

Most states have statutes allowing a surviving spouse to elect either a statutory share (usually one-third of the estate if children survive, one-half otherwise), which is the share that the spouse would have received if the decedent had died intestate, or the provision made in the spouse's will. As a general rule, surviving spouses are prohibited from taking their elective share if they unjustly engaged in desertion or committed bigamy.

A spouse can usually waive, release, or contract away his statutory rights to an elective share or to dower or curtesy by either an antenuptial (also called prenuptial) or postnuptial agreement, if it is fair and made with knowledge of all relevant facts. Such agreements must be in writing.

Community property A community property system generally treats the husband and wife as co-owners of property acquired by either of them during the marriage. On the death of one, the survivor is entitled to one-half the property, and the remainder passes according to the will of the decedent.

Children Generally parents can completely disinherit their children. A court will uphold such provisions if the testator specifically mentions in the will that he is intentionally disinheriting certain named children. Many states, however, have pretermitted heir provisions, which give children born or adopted after the execution of the will and not mentioned in it an intestate share, unless the omission appears to be intentional.

Additional topics

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