Marital Regimes and the Share of the Surviving Spouse in the Estate of the Defunct
The legal reserve, or part of the property of the deceased determined by law to be reserved only for certain persons (like a spouse) does not exist in the Common Law system in countries such as the United States. As a result, there is wide-ranging freedom in the dispositions that can be made in a will. A spouse as well as one’s children can de disinherited.
Many of the states in the USA, have adopted the Uniform Probate Code (UPC). It was approved in 1969 with amendment sin 1975, 1982, 1987, 1990-91 and 1997 by the National Conference of Commissioners on Uniform State laws and the American Bar Association. To date it has been adopted completely in fifteen states: Alaska, Colorado, Hawaii, Idaho Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota and Utah.
The UPC includes dispositions that define an “augmented estate” which includes the properties and assets of both spouses, withdrawing some inter vivos (between living persons) transfers or gifts in the calculation of the deceased’s estate
Some states do not take into consideration an increase in the surviving spouses share based on the number of years of the marriage. However, Montana, for example, provides for an increase based on each year of marriage. However, the law provides little protection against the disposal of assets during the marriage, either in the form of gifts or by other means.
Some states adhere to the Community Property regime: Arizona, California, Idaho Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. The property of the spouses is labeled either as community property or separate property. Any assets acquired by the spouses during the marriage is considered community property, no matter which spouse buys it. Separate property refers to any property the spouses acquired separately before the marriage or after separation (or in some states after divorce). Separate property also includes any gifts or inheritances acquired by either spouse at any time.
In this regime the surviving spouse is owner of half of the community property even before the decease of his/her spouse. This provides some protection for the spouses in keeping their share intact. The question of division of the estate subject to this regime only applies to the other half—the deceased spouse's half of the community property. There are no restrictions on how the testamentary spouse disposes of this half of the estate.
For some implications that this has when a marriage ends in divorce, stay tuned for our next blog. https://www.ammon-rousseau.com/divorce-settlement-division-of-assets-in-the-us/
