Til Death or Divorce Do Us Depart: The Case for Aligning the Elective Share with Alimony Reform
Posted: 1 Aug 2013
Date Written: July 31, 2013
The Uniform Probate Code elective share provision’s stated goal is to bring elective share law into line with the contemporary view of marriage as an economic partnership. It also, however, recognizes as an overarching purpose ensuring that the surviving spouse is not left without sufficient funds for support. This article argues that the UPC’s assumption that marriages eventually evolve into an economic partnership over a certain period does not necessarily achieve the intended goal of ensuring that the surviving spouse is self-sufficient. This failing of the UPC is due, in part, to the over-reliance on property distribution theories to achieve what is essentially a spousal support goal. This article proposes that, instead of using various property distribution theories to achieve these ends, the concept of alimony would provide a more solid and appropriate theoretical ground for effectively achieving the goal of self-support for surviving spouses. Under this approach, courts would look at the surviving spouse’s need and the estate’s ability to pay in cases where the surviving spouse feels as if his/her decedent spouse did not adequately provide for them after death.
This article makes the case for shifting the elective share theory from that of property distribution to the notion of alimony. It re-examines the various approaches taken by the UPC since the fundamental revision of the elective share provision in 1990. It also discusses the goal of the provision of the elective share and queries whether the current iteration of the UPC or even the community-property version of the elective share provision actually achieves that goal. Finally the article proposes that the alimony construct may be a better solution. Given the recent resurgence in alimony reform for predictability, and the on going goal to align the UPC with family law, the time is ripe to examine the true goals of both of these policies.
Keywords: Alimony, Elective Share, marital partnership theory, divorce, testator intent, UPC, equitable distribution
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