CP, SP, QCP

Valid Waiver of Spouse

writing and signed by the surviving spouse.....lack of consideration/minority NOT A DEFENSE

Take money for omitted spouse from

(1) First taken from D's estate not disposed of by will or trust (intestate assets) (2) Then from all beneficiaries in proportion to how much they received Ex. Will gives 50k to A and 100k to B. B is getting twice as much as A, so omitted spouse's share will come twice as much from B's share than A's.

WAIVER OF GIFT BY SURVIVING SPOUSE - THINGS YOU CAN WAIVE

(1) Property via intestacy (CP etc) (2) Gift in will executed BEFORE waiver (a waiver won't waive anything given in a will executed after the waiver) (3) Statutory share as an omitted spouse (4) Right to be appointed as executor/administrator (5) Interest in non-probate property (life insurance, IV trust) EXCEPT can't waive POD/TOD and JT w ROS NOTE: You can say just say you are waiving all rights in property/estate of my spouse which will cover all of these

Take money for omitted child from

1. First taken from D's estate not disposed of by will/trust (intestate assets) 2. Then from all beneficiaries in proportion to how much they received

Omitted Child- Afterborn

After Born Child 1. All testamentary instruments have been created (will/revocable IV trust with no provision for omitted child) 2. Then birth or adoption of child 3. T dies without changing will/trust EXCEPT (a) If it is an intentional omission and that intent appears on face of will/trust (no extrinsic evidence allowed) (b)When T provided for spouse outside of the testamentary instrument and intended it to take the place of a testamentary gift (i) Determine intent by comparing the amount they received outside compared to what they would've gotten as an omitted (ii) Extrinsic evidence allowed (c) D has more than one child and gave substantially all the estate to the other parent to care for omitted child

QCP

Lived in a SP state but dies domiciled in CA ½ of the earnings during marriage in the SP state becomes CP Anything bought with those proceeds Wife's NY bank account with direct deposit of her paycheck (would be cp in ca) ABC stock wife bought with her earnings (would be cp in ca) NOT the vacation cabin in Vermont bought with her earnings (would not be cp in ca) Surviving spouse owns ½ only once the acquiring spouse dies

CP

Married person is not required to leave anything to their spouse in their will Each spouse owns ½ from the moment it is acquired ½ of the earnings during marriage in the CP state ½ of all property acquired with earnings during marriage Anything bought with those proceeds

SP

Property acquired before marriage Property acquired after marriage by gift or inheritance

Omitted Child

You should expressly omit your child or else there will be a contest... We provide for an omitted child with their intestate share if: T erroneously believed child was dead T was unaware of child's birth Child born after will

Exceptions to Omitted Spouse

1. Valid Waiver 2. When T's failure to provide for his spouse was intentional and intent appears on the face of the will (No extrinsic evidence allowed) Ex. I'm getting married tomorrow and she's purposefully getting nothing 3. When T provided for spouse outside of the testamentary instrument and intended it to take the place of a testamentary gift (a) JT/Irrevocable trust/ Life insurance/ POD/TOD (b) Extrinsic evidence is allowed (c) Determine intent by comparing the amount they received outside compared to what they would've gotten as an omitted

Omitted Spouse (wills/revocable IV trusts, not irrevocable)

If T: (1) Will (doesn't provide for spouse) (2) Then Married (after the execution of all of T's testamentary instruments) (3) The spouse will receive: (a) ½ of CP that belongs to D (so spouse gets all the CP) (b) ½ of the QCP that belongs to T (all the QCP) and (c) The share of T's SP they would have gotten under intestacy but no more than ½ of the SP in the estate

Rebutting Waiver Claim

The spouse can argue they did NOT waive if- (a) No fair & reasonable disclosure of assets/financial obligations were made prior to signing the waiver OR (b) She was not represented by independent legal counsel -If she was represented by independent legal counsel and they waived the disclosure, she has no claim However, the waiver could still be held enforceable if either: (a) At the time of signing, the waiver made a fair & reasonable disposition of rights OR (b) The surviving spouse had/should've had adequate knowledge of deceased's property & financial obligations and deceased didn't violate good faith & fair dealing But the court can still refuse to enforce a waiver if the terms are unconscionable now. Unconscionable- Probate code doesn't have a definition, but if you have facts that suggest it's unconscionable, the ct might refuse to enforce.

Spouse gives away their QCP

The surviving spouse can require the 3rd party to return ½ of the QCP that D gave them if: (1) H died domiciled in CA first (2) The transfer was made without (a) substantial consideration and (b) consent of the spouse and (3) The H kept his mitts on it by (a) keeping possession/enjoyment/income from the property/power to revoke/use the property or (b) it was a ROS. (If the 3rd party sold the property, must return ½ the proceeds If no proceeds, must return ½ of the value of QCP at the time of transfer) But, while husband is still alive, wife can get 100% of the gift back from the transferee If D did not maintain any control over the QCP he gave away, the spouse has no claim.