PART 3. SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
SECTION 2-301. ENTITLEMENT OF SPOUSE; PREMARITAL WILL.
her] will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he [or she] would have received if the testator had died intestate as to that portion of the testator’s estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving
Uniform Probate Code
(a) If a testator’s surviving spouse married the testator after the testator executed his [or
her] will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he [or she] would have received if the testator had died intestate as to that portion of the testator’s estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving
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spouse nor is devised to a descendant of such a child or passes under Sections 2-603 or 2-604 to
such a child or to a descendant of such a child, unless:
(1) it appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse;
(2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or
(3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
(b) In satisfying the share provided by this section, devises made by the will to the testator’s surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under Sections 2-603 or 2-604 to a descendant of such a child, abate as provided in Section 3-902.
Comment
Purpose and Scope of the Revisions. This section applies only to a premarital will, a will executed prior to the testator’s marriage to his or her surviving spouse. If the decedent and the surviving spouse were married to each other more than once, a premarital will is a will executed by the decedent at any time when they were not married to each other but not a will executed during a prior marriage. This section reflects the view that the intestate share of the spouse in that portion of the testator’s estate not devised to certain of the testator’s children, under trust or not, (or that is not devised to their descendants, under trust or not, or does not pass to their descendants under the antilapse statute) is what the testator would want the spouse to have if he or she had thought about the relationship of his or her old will to the new situation.
Under this section, a surviving spouse who married the testator after the testator executed his or her will may be entitled to a certain minimum amount of the testator’s estate. The surviving spouse’s entitlement under this section, if any, is granted automatically; it need not be elected. If the surviving spouse exercises his or her right to take an elective share, amounts provided under this section count toward making up the elective-share amount by virtue of the language in subsection (a) stating that the amount provided by this section is treated as “an
(1) it appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse;
(2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or
(3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
(b) In satisfying the share provided by this section, devises made by the will to the testator’s surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under Sections 2-603 or 2-604 to a descendant of such a child, abate as provided in Section 3-902.
Comment
Purpose and Scope of the Revisions. This section applies only to a premarital will, a will executed prior to the testator’s marriage to his or her surviving spouse. If the decedent and the surviving spouse were married to each other more than once, a premarital will is a will executed by the decedent at any time when they were not married to each other but not a will executed during a prior marriage. This section reflects the view that the intestate share of the spouse in that portion of the testator’s estate not devised to certain of the testator’s children, under trust or not, (or that is not devised to their descendants, under trust or not, or does not pass to their descendants under the antilapse statute) is what the testator would want the spouse to have if he or she had thought about the relationship of his or her old will to the new situation.
Under this section, a surviving spouse who married the testator after the testator executed his or her will may be entitled to a certain minimum amount of the testator’s estate. The surviving spouse’s entitlement under this section, if any, is granted automatically; it need not be elected. If the surviving spouse exercises his or her right to take an elective share, amounts provided under this section count toward making up the elective-share amount by virtue of the language in subsection (a) stating that the amount provided by this section is treated as “an
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intestate share.” Under Section 2-209(a)(1), amounts passing to the surviving spouse by intestate
succession count first toward making up the spouse’s elective-share amount.
Subsection (a). Subsection (a) is revised to make it clear that a surviving spouse who, by a premarital will, is devised, under trust or not, less than the share of the testator’s estate he or she would have received had the testator died intestate as to that part of the estate, if any, not devised to certain of the testator’s children, under trust or not, (or that is not devised to their descendants, under trust or not, or does not pass to their descendants under the antilapse statute) is entitled to be brought up to that share. Subsection (a) was amended in 1993 to make it clear that any lapsed devise that passes under Section 2-604 to a child of the testator by a prior marriage, rather than only to a descendant of such a child, is covered.
Example. G’s will devised the residue of his estate “to my two children, A and B, in equal shares.” A and B are children of G’s prior marriage. G is survived by A and by G’s new spouse, X. B predeceases G, without leaving any descendants who survived G by 120 hours. Under Section 2-604, B’s half of the residue passes to G’s child, A. A is a child of the testator’s prior marriage but not a descendant of B. X’s right under Section 2-301 are to take an intestate share in that portion of G’s estate not covered by the residuary clause.
The pre-1990 version of Section 2-301 was titled “Omitted Spouse,” and the section used phrases such as “fails to provide” and “omitted spouse.” The implication of the title and these phrases was that the section was inapplicable if the person the decedent later married was a devisee in his or her premarital will. It was clear, however, from the underlying purpose of the section that this was not intended. The courts recognized this and refused to interpret the section that way, but in doing so they have been forced to say that a premarital will containing a devise to the person to whom the testator was married at death could still be found to “fail to provide” for the survivor in the survivor’s capacity as spouse. See Estate of Christensen, 665 P.2d 646 (Utah 1982); Estate of Ganier, 418 So.2d 256 (Fla.1982); Note, “The Problem of the ‘Un- omitted’ Spouse Under Section 2-301 of the [Pre-1990] Uniform Probate Code,” 52 U. Chi. L. Rev. 481 (1985). By making the existence and amount of a premarital devise to the spouse irrelevant, the revisions of subsection (a) make the operation of the statute more purposive.
Subsection (a)(1), (2), and (3) Exceptions. The moving party has the burden of proof on the exceptions contained in subsections (a)(1), (2), and (3). For a case interpreting the language of subsection (a)(3), see Estate of Bartell, 776 P.2d 885 (Utah 1989). This section can be barred by a premarital agreement, marital agreement, or waiver as provided in Section 2-213.
Subsection (b). Subsection (b) is also revised to provide that the value of any premarital devise to the surviving spouse, equitable or legal, is used first to satisfy the spouse’s entitlement under this section, before any other devises suffer abatement. This revision is made necessary by the revision of subsection (a): If the existence or amount of a premarital devise to the surviving spouse is irrelevant, any such devise must be counted toward and not be in addition to the ultimate share to which the spouse is entitled. Normally, a devise in favor of the person whom the testator later marries will be a specific or general devise, not a residuary devise. The effect under the pre-1990 version of subsection (b) was that the surviving spouse could take the intestate share under Section 2-301, which in the pre-1990 version was satisfied out of the
Subsection (a). Subsection (a) is revised to make it clear that a surviving spouse who, by a premarital will, is devised, under trust or not, less than the share of the testator’s estate he or she would have received had the testator died intestate as to that part of the estate, if any, not devised to certain of the testator’s children, under trust or not, (or that is not devised to their descendants, under trust or not, or does not pass to their descendants under the antilapse statute) is entitled to be brought up to that share. Subsection (a) was amended in 1993 to make it clear that any lapsed devise that passes under Section 2-604 to a child of the testator by a prior marriage, rather than only to a descendant of such a child, is covered.
Example. G’s will devised the residue of his estate “to my two children, A and B, in equal shares.” A and B are children of G’s prior marriage. G is survived by A and by G’s new spouse, X. B predeceases G, without leaving any descendants who survived G by 120 hours. Under Section 2-604, B’s half of the residue passes to G’s child, A. A is a child of the testator’s prior marriage but not a descendant of B. X’s right under Section 2-301 are to take an intestate share in that portion of G’s estate not covered by the residuary clause.
The pre-1990 version of Section 2-301 was titled “Omitted Spouse,” and the section used phrases such as “fails to provide” and “omitted spouse.” The implication of the title and these phrases was that the section was inapplicable if the person the decedent later married was a devisee in his or her premarital will. It was clear, however, from the underlying purpose of the section that this was not intended. The courts recognized this and refused to interpret the section that way, but in doing so they have been forced to say that a premarital will containing a devise to the person to whom the testator was married at death could still be found to “fail to provide” for the survivor in the survivor’s capacity as spouse. See Estate of Christensen, 665 P.2d 646 (Utah 1982); Estate of Ganier, 418 So.2d 256 (Fla.1982); Note, “The Problem of the ‘Un- omitted’ Spouse Under Section 2-301 of the [Pre-1990] Uniform Probate Code,” 52 U. Chi. L. Rev. 481 (1985). By making the existence and amount of a premarital devise to the spouse irrelevant, the revisions of subsection (a) make the operation of the statute more purposive.
Subsection (a)(1), (2), and (3) Exceptions. The moving party has the burden of proof on the exceptions contained in subsections (a)(1), (2), and (3). For a case interpreting the language of subsection (a)(3), see Estate of Bartell, 776 P.2d 885 (Utah 1989). This section can be barred by a premarital agreement, marital agreement, or waiver as provided in Section 2-213.
Subsection (b). Subsection (b) is also revised to provide that the value of any premarital devise to the surviving spouse, equitable or legal, is used first to satisfy the spouse’s entitlement under this section, before any other devises suffer abatement. This revision is made necessary by the revision of subsection (a): If the existence or amount of a premarital devise to the surviving spouse is irrelevant, any such devise must be counted toward and not be in addition to the ultimate share to which the spouse is entitled. Normally, a devise in favor of the person whom the testator later marries will be a specific or general devise, not a residuary devise. The effect under the pre-1990 version of subsection (b) was that the surviving spouse could take the intestate share under Section 2-301, which in the pre-1990 version was satisfied out of the
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residue (under the rules of abatement in Section 3-902), plus the devise in his or her favor. The
revision of subsection (b) prevents this “double dipping,” so to speak.
Reference. The theory of this section is discussed in Waggoner, “Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J. 683, 748-51 (1992).
Historical Note. This comment was revised in 1993. For the prior version, see 8 U.L.A. 101 (Supp. 1992).
Reference. The theory of this section is discussed in Waggoner, “Spousal Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code,” 26 Real Prop. Prob. & Tr. J. 683, 748-51 (1992).
Historical Note. This comment was revised in 1993. For the prior version, see 8 U.L.A. 101 (Supp. 1992).
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