all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law

BUT an appointment of the former spouse as guardian of the children is not affected 

EPTL protects pretermitted children (born after the will is executed) who are:

1. not provided for by any settlement AND

2. neither provided for nor mentioned in the will 

will makes NO PROVISION for any children --> pretemitted gets nothing

Will made gifts to other chilren --> pretermitted child shares in the amount to the other children as if a class gift was made

if only LIMITED provision to children --> pretermitted child takes intestate share (taken proportionately from other beneficiaries)

COMMON LAW --> words of disinheritance are ineffective with respect to prop. passing by intestacy if will does not make complete distribution

DOES NY HAVE THIS "NEGATIVE BEQUEST" RULE?

no!

Words of disinheritance are given full effect in partial intestacy 

(treat disinherited person as predeceased)

COMMON LAW --> lifetime gift to beneficiary named in testator's will was presumptively made in partial or total satisfaction of the legacy

NY RULE:

NO SATISFACTION OF LEGACY UNLESS:

1. contemporaneous writing made at time of gift

AND 

2. signed by donor or donee 

Not recognized in NY!! 

Almost all other states: can incorporate if doc was in existence when will was created, will shows intent to incorporate, and document is clearly identified in will 

ABATE!

(not giving effect to gifts so that creditors claims can be satisfied)

1. intestate and residuary property

THEN ABATE PRO RATA

2. general legacies

3. demonstrative legacies

4. specific legacies

AND ONLY THEN

5. items that qualify for estate tax marital deduction

specific --> "i devise my computer to seth"

general amount --> "i give the sum of $4 million to seth"

gift fails under doctrine of

ADEMPTION!

ONLY APPLIES TO SPECIFIC GIFTS!!!

1. insurance proceeds for lost, damage, or destroyed property

-beneficiary takes proceeds that are paid AFTER DEATH

2. proceeds received under an executory contract

-beneficiary gets proceeds paid AFTER DEATH

3. proceeds from guardian or conservator's sale of specifically bequeathed property

-beneficiary is entitled to receive money or prop into which proceeds from sale or transfer can be traced 

COMMON LAW RULE: if a testator makes a specific gift of prop. that is subject to a mortgage or lien on which testator is personally liable, beneficiary is entitled to have the lien EXONERATED (using prop from residuary)

NY RULE:

Gifts of shares of publicly-traded corps --> GENERAL GIFTS (dont adeem)

if it says MY SHARES --> specific (adeems)

CLOSELY HELD STOCK --> specific

STOCK FROM STOCK SPLIT --> specific 

Probate: property that a testator owned solely in his name at the time of his death

Non-Probate: interests in property that are NOT subject to disposition under the will or via intestacy 

-property passing by right of survivorship

-property passing by contract (payable to beneficiary other than decedent or decedents estate)

-property held in trust 

-property over which decedent held power of appointment 

ELECTIVE SHARE IS....

greater of 

50K

or

1/3 of the estate 

others contribute proportionately or pro rata 

contributed by beneficiaries under the will, beneficiaries of T-subs, and/or intestate distributees

Under intestacy, surviving spouse takes ENTIRE ESTATE (w/ no kids) OR 50K PLUS 1/2 balance of estate (if kids)

SO if decedent died without will, surviving spouse's intestate share will always be greater than his/her elective share

(unless many T subs are involved)

Probate estate 

+ 

T-subs 

T-SUBS!!

T-SUB LEG UP!

T: Totten Trusts

S: Survivorship Estates

L: Lifetime transfers that are revocable (revocable trusts)

E: Employee Pension/Profit Sharing/deferred compensation plans

-if plan is qualified, only 1/2 is T-sub

G: Gifts made within 1 year of death if over $13K

U: U.S. government bonds

P: Powers of appointment 

NON T-SUBS!

LOGPIT

L: Life Insurance

O: One-Half of qualified pension and profit sharing benefits if T named beneficiary before 9/1/92

G: Gifts less than $13K made within a year

P: Pre-marriage revocable transfers

I: Irrevocable transfers made more than one year before death

T: Transfers (irrevocable) made during marriage, where testator retains life estate (if irrevocably transferred before 9/1/92)

generally, if T does NOT have an interest (can't touch it or manipulate/change it) NOT A T SUB

exception:

life insurance

you can touch it all you want, not a T-sub 

consideration furnished test applies

(surviving spouse has the burden of proving the amount the dead spouse contributed to the asset)

HALF IS T-SUB

Half in, half out!

add up NET probate estate AND T SUBS

divide by 3

subtract what goes to husband 

THEN see if it is more or less than 50K

Survivorship Estates created BEFORE marriage involving the testator and a THIRD PARTY:

(pre marriage property)

RULE: consideration furnished test applies BUT

only one half of property's value is T SUB

(joint tenant's half is not a t sub)

Same rule applies to joint bank accounts involving testator and third parties, re: deposits made before marriage