The Treatment of Trusts and Other Partial Interests of the Surviving Spouse Under the Redesigned Elective-Share System: Some Concerns and Suggestions

Abstract:     
This Article addresses various concerns with the redesigned elective-share system in terms of its effect on the surviving spouse who owns or succeeds to a partial interest in property. In particular, this Article focuses on the surviving spouse’s right as the income beneficiary of a trust for life. The Article first explains the general operation of the redesign elective-share system, and then considers the system’s application to trust and other partial interests. The remainder of the Article raises concerns over, and makes suggestions with respect to the treatment or trust and other partial interests under the redesigned system. The author addresses specific problem areas that deserve attention in this context, including: valuation problems, especially the potential for reducing the surviving spouse’s benefit by overvaluing partial interests; the rule that counts disclaimed property against the surviving spouse; and the inclusion of certain separate property in elective share computations. The author’s comments are made in the spirit of constructive criticism and with the hope that improvements can be made in the redesigned elective-share system’s treatment of partial interests. The author goes on in his final analysis to find that the goal of a uniform elective-share law is desirable, especially considering the shocking lack of uniformity among the forty-one American jurisdictions currently operating under elective-share systems.

Number of Pages in PDF File: 41

Keywords: elective-share systems, surviving spouse, partial interest, income beneficiary, trust for life

Accepted Paper Series