Law of Wills, 2016A

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, Nevada, 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 his 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-share provision ………is to
prevent spousal disinheritance in order to ensure that the surviving spouse's contribution to the acquisition of property
during the marriage is recognized and in order to ensure that the surviving spouse has continuing 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 arrangements 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. See, 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 land 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, once
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 (West 2016).
12
At common law, a man was given a support interest in his wife’s land referred to as curtesy. 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).
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