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Executor's Duty: Informing Surviving Spouse of Decision Rights

Surviving spouses may have some important rights to collect on and decisions to make with regard to the will and the decedent’s estate. There are a few important rights, allowances, and decisions the surviving husband or wife needs to make when the decedent has died and probate has begun. Your duty as executor is to inform the surviving spouse of these rights as soon as possible.

How to exercise rights ahead of the provisions of the will

In just about every state the surviving spouse, (and sometimes the decedent’s children) has rights to certain property whether or not there is a will, and no matter what the will says. These rights come ahead of the provisions of the will for disposition of the property. Check with your probate court if your decedent leaves a surviving spouse and/or children. For instance, in Michigan, the surviving spouse is entitled to the following, all indexed for inflation:

  • Homestead Allowance: The surviving spouse receives a homestead allowance of $21,000 as of 2012. If there’s no surviving spouse, the $21,000 is divided equally among the minor children and each dependent child.

  • Family Allowance: A “reasonable amount” can be paid to the surviving spouse for the benefit of the spouse and the minor and dependent children each year the estate is in existence (limited to one year if the estate is inadequate to discharge allowed claims), as a family allowance. While no amount is set in the law, it can be up to $25,000 per year as of 2012.

  • Exempt Property: The surviving spouse is entitled to exempt property in the amount of $14,000 as of 2012, including household furniture and furnishings, appliances, personal effects, and automobiles. If there is no surviving spouse, the decedent’s children are entitled to this property.

How to elect against the will

The surviving spouse has the right to elect to take against the will. In other words, instead of receiving what the decedent left to him or her as a beneficiary under the will, he or she may choose to receive instead what that surviving spouse is entitled to under state law; his or her statutory share. The statutory share isn’t the same as the intestate share.

Because you, as executor, do not the surviving spouse, you should not advise the spouse on whether to accept the will’s bequest. However, be sure that the surviving spouse is aware of this right. In some jurisdictions, you are required to provide a form of Notice to Surviving Spouse of Elections and Allowances and file it, along with a proof of service and the spouse’s election, with the court.

Sometimes, a spouse electing against the will just has to file a document waiving his or her share under the will and claiming the statutory share within a set period after the allowance of the will. Electing to take against the will is an all-or-nothing proposition. If the decedent and the surviving spouse prepared their estate plan documents together and were in agreement on their plans,this is unlikely.

Electing to take against the will has many consequences, some of which may not be readily apparent. For example, if the decedent exercised a power of appointment in the will over a trust in favor of the surviving spouse and the spouse elects against the will, the spouse also loses the property subject to the power of appointment.

The estate tax consequences of a waiver should also be kept in mind, as should the fees and expenses involved in dealing with the waiver and its results.

How to claim dower

Statutory dower (governed by legislated law) exists in many states to replace common law dower (governed by customary law) and curtesy. Dower is the right of a surviving spouse to an estate for life in a portion of the property owned by the decedent at death, subject to any encumbrances on the property.

Translation: The surviving spouse gets the use of, for instance, one-third of the real estate for life. Depending on what the real estate is, that use can be, for instance, to live in one-third, or collect one-third of the rents, or receive one-third of the profits from the crops grown on it.

Although dower originally only applied to widows, it now applies to widowers as well, because common law curtesy (the right of the widower to the use of all the wife’s real estate for life) has generally been abolished.

To claim dower, the surviving spouse files a claim in the probate court within a fixed period after death. If dower is claimed, the surviving spouse must also waive the will (if applicable) and take his or her statutory share.

Few spouses actually find it beneficial to claim dower because they’ve planned their wills together and don’t have a reason to take against the will, and dower is a clumsy means of inheritance. Someone may choose this option if his or her deceased spouse didn’t include them in his or her estate plan.

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