SECTION 2-203. COMPOSITION OF THE AUGMENTED ESTATE; MARITAL- PROPERTY PORTION. proposed Uniform Probate Code

SECTION 2-203. COMPOSITION OF THE AUGMENTED ESTATE; MARITAL- PROPERTY PORTION. proposed Uniform Probate Code
(a) Subject to Section 2-208, the value of the augmented estate, to the extent provided in Sections 2-204, 2-205, 2-206, and 2-207, consists of the sum of the values of all property, whether real or personal; movable or immovable, tangible or intangible, wherever situated, that constitute:
(1) the decedent’s net probate estate;
(2) the decedent’s nonprobate transfers to others;
(3) the decedent’s nonprobate transfers to the surviving spouse; and (4) the surviving spouse’s property and nonprobate transfers to others.
Alternative A
(b) The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection (a) multiplied by the following percentage:
If the decedent and the spouse The percentage is: were married to each other:
Lessthan1year ......................................................................................3% 1 year but less than 2 years ..................................................................... 6% 2 years but less than 3 years .................................................................. 12% 3 years but less than 4 years ................................................................. 18% 4 years but less than 5 years ................................................................. 24% 5 years but less than 6 years .................................................................. 30%

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6 years but less than 7 years ................................................................. 36% 7 years but less than 8 years ................................................................. 42% 8 years but less than 9 years .................................................................. 48% 9 years but less than 10 years ............................................................... 54% 10 years but less than 11 years .............................................................. 60% 11 years but less than 12 years ............................................................. 68% 12 years but less than 13 years .............................................................. 76% 13 years but less than 14 years .............................................................. 84% 14 years but less than 15 years .............................................................. 92% 15 years or more .................................................................................. 100%
Alternative B
(b) The value of the marital-property portion of the augmented estate equals the value of that portion of the augmented estate that would be marital property at the decedent’s death under [the Model Marital Property Act] [copy in definition from Model Marital Property Act, including the presumption that all property is marital property] [copy in other definition chosen by the enacting state].
End of Alternatives
Comment
Subsection (a) operates as an umbrella section identifying the augmented estate as consisting of the sum of the values of four components. On the decedent’s side are the values of (1) the decedent’s “net” probate estate (Section 2-204) and (2) the decedent’s nonprobate transfers to others (Section 2-205). Straddling between the decedent’s side and the surviving spouse’s side is the value of (3) the decedent’s nonprobate transfers to the surviving spouse (Section 2-206). On the surviving spouse’s side are the values of (4) the surviving spouse’s net assets and the surviving spouse’s nonprobate transfers to others (Section 2-207). Under Section 2-202(a), the elective-share percentage is 50 percent of the value of the marital-property portion of the augmented estate.

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Subsection (b) contains alternative provisions. Alternative A is for states that wish to define the marital-property portion of the augmented estate by approximation based on the length of the marriage. Alternative B is for states that wish to define the marital-property portion of the estate in terms of a deferred marital property approach such as the Model Marital Property Act (1983).
Alternative A provides a schedule for determining the marital-property portion of the value of the four components of the augmented estate. The schedule deems by approximation that 100 percent of the components of the augmented estate is marital property after 15 years of marriage. Government data indicate that the median length of a first marriage that does not end in divorce is 46.3 years, the median length of a post-divorce remarriage that does not end in divorce is 35.1 years, and the median length of a post-widowhood remarriage that does not end in divorce is 14.4 years. Enacting states may determine that this data supports lengthening the schedule in subsection (b) to 20 or even 25 years. See Lawrence W. Waggoner, The Uniform Probate Code’s Elective Share: Time for a Reassessment, 37 U. Mich. J. L. Reform 1, 11-29 (2003).
Alternative B is provided for states that decide not to define the marital-property portion of the augmented estate by approximation, but rather in terms of property actually acquired during the marriage other than by gift or inheritance. See Waggoner, supra, at 30-32.
Historical Note. This Comment was added in 1993 and revised in 2008 and 2011.