SECTION 2-206. DECEDENT’S NONPROBATE TRANSFERS TO THE
SURVIVING SPOUSE. Uniform Probate Code
Excluding property passing to the surviving spouse under the federal Social Security system, the value of the augmented estate includes the value of the decedent’s nonprobate transfers to the decedent’s surviving spouse, which consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including
(1) the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant,
(2) the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner, and
(3) all other property that would have been included in the augmented estate under Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s
Excluding property passing to the surviving spouse under the federal Social Security system, the value of the augmented estate includes the value of the decedent’s nonprobate transfers to the decedent’s surviving spouse, which consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including
(1) the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant,
(2) the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner, and
(3) all other property that would have been included in the augmented estate under Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s
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spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.
Comment
This section, which in the 1990 version appeared in substance as a paragraph of a single, long section defining the augmented estate, establishes as the third component of the augmented estate the value of the decedent’s nonprobate transfers to the decedent’s surviving spouse. Under this section, the decedent’s nonprobate transfers to the decedent’s surviving spouse consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:
(1) the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant,
(2) the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner, and
(3) all other property that would have been included in the augmented estate under Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.
Property passing to the surviving spouse under the federal Social Security system is excluded.
Various aspects of Section 2-206 are illustrated by the following examples. In these examples, as in the examples in the Comment to Section 2-205, above, G is the decedent and S is the decedent’s surviving spouse.
Example 20 – Tenancy by the Entirety. G and S own property in tenancy by the entirety. G died, survived by S.
Because the definition in Section 1-201 of “joint tenants with the right of survivorship” includes tenants by the entirety, the provisions of Section 2-206 relating to joint tenancies with right of survivorship apply to tenancies by the entirety.
In total, therefore, the full value of the property is included in the augmented estate – G’s one-half under Section 2-206(1) and S’s one-half under Section 2-207(a)(1)(A).
Section 2-206(1) requires the inclusion of the value of G’s one-half fractional interest because it passed to S as surviving joint tenant.
Section 2-207(a)(1)(A) requires the inclusion of S’s one-half fractional interest. Because G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes of Section 2-207, is determined immediately before G’s death, disregarding the fact that G
Comment
This section, which in the 1990 version appeared in substance as a paragraph of a single, long section defining the augmented estate, establishes as the third component of the augmented estate the value of the decedent’s nonprobate transfers to the decedent’s surviving spouse. Under this section, the decedent’s nonprobate transfers to the decedent’s surviving spouse consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:
(1) the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant,
(2) the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner, and
(3) all other property that would have been included in the augmented estate under Section 2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.
Property passing to the surviving spouse under the federal Social Security system is excluded.
Various aspects of Section 2-206 are illustrated by the following examples. In these examples, as in the examples in the Comment to Section 2-205, above, G is the decedent and S is the decedent’s surviving spouse.
Example 20 – Tenancy by the Entirety. G and S own property in tenancy by the entirety. G died, survived by S.
Because the definition in Section 1-201 of “joint tenants with the right of survivorship” includes tenants by the entirety, the provisions of Section 2-206 relating to joint tenancies with right of survivorship apply to tenancies by the entirety.
In total, therefore, the full value of the property is included in the augmented estate – G’s one-half under Section 2-206(1) and S’s one-half under Section 2-207(a)(1)(A).
Section 2-206(1) requires the inclusion of the value of G’s one-half fractional interest because it passed to S as surviving joint tenant.
Section 2-207(a)(1)(A) requires the inclusion of S’s one-half fractional interest. Because G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes of Section 2-207, is determined immediately before G’s death, disregarding the fact that G
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predeceased S. Immediately before G’s death, S’s fractional interest was then a one-half
fractional interest. Despite Section 2-205(1)(B), none of S’s fractional interest is included under
Section 2-207(a)(2) because that provision does not apply to fractional interests that are included
under Section 2-207(a)(1)(A). Consequently, the value of S’s one-half interest is included under
Section 2-207(a)(1)(A) but not under Section 2-207(a)(2).
Example 21 – Joint Tenancy. G, S, and X own property in joint tenancy. G died more than two years after the property was titled in that form, survived by S and X.
In total, two-thirds of the value of the property at G’s death is included in the augmented estate – one-sixth under Section 2-205, one-sixth under Section 2-206, and one-third under Section 2-207.
Section 2-205(1)(B) requires the inclusion of half of the value of G’s one-third fractional interest because that half passed by right of survivorship to X.
Section 2-206(1) requires the inclusion of the value of the other half of G’s one-third fractional interest because that half passed to S as surviving joint tenant.
Section 2-207(a)(1)(A) requires the inclusion of the value of S’s one-third interest. Because G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes of Section 2-207, is determined immediately before G’s death, disregarding the fact that G predeceased S. Immediately before G’s death, S’s fractional interest was then a one-third fractional interest. Despite Section 2-205(1)(B), none of S’s fractional interest is included under Section 2-207(a)(2) because that provision does not apply to fractional interests that are included under Section 2-207(a)(1)(A). Consequently, the value of S’s one-third fractional interest is included in the augmented estate under Section 2-207(a)(1)(A) but not under Section 2- 207(a)(2).
Example 22 – Income Interest Passing to Surviving Spouse. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for the income to go to S for life, then for the corpus of the trust to go to X. G died, survived by S and X.
The full value of the corpus of the trust at G’s death is included in the augmented estate under a combination of Sections 2-205 and 2-206.
Section 2-206(3) requires the inclusion of the commuted value of S’s income interest. Note that, although S owns the income interest as of G’s death, the value of S’s income interest is not included under Section 2-207 because Section 2-207 only includes property interests that are not included under Section 2-206.
Section 2-205(2)(A) requires the inclusion of the commuted value of X’s remainder interest.
Example 23 – Corpus Passing to Surviving Spouse. Before death, and during marriage,
Example 21 – Joint Tenancy. G, S, and X own property in joint tenancy. G died more than two years after the property was titled in that form, survived by S and X.
In total, two-thirds of the value of the property at G’s death is included in the augmented estate – one-sixth under Section 2-205, one-sixth under Section 2-206, and one-third under Section 2-207.
Section 2-205(1)(B) requires the inclusion of half of the value of G’s one-third fractional interest because that half passed by right of survivorship to X.
Section 2-206(1) requires the inclusion of the value of the other half of G’s one-third fractional interest because that half passed to S as surviving joint tenant.
Section 2-207(a)(1)(A) requires the inclusion of the value of S’s one-third interest. Because G was a joint tenant immediately before G’s death, S’s fractional interest, for purposes of Section 2-207, is determined immediately before G’s death, disregarding the fact that G predeceased S. Immediately before G’s death, S’s fractional interest was then a one-third fractional interest. Despite Section 2-205(1)(B), none of S’s fractional interest is included under Section 2-207(a)(2) because that provision does not apply to fractional interests that are included under Section 2-207(a)(1)(A). Consequently, the value of S’s one-third fractional interest is included in the augmented estate under Section 2-207(a)(1)(A) but not under Section 2- 207(a)(2).
Example 22 – Income Interest Passing to Surviving Spouse. Before death, and during marriage, G created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for the income to go to S for life, then for the corpus of the trust to go to X. G died, survived by S and X.
The full value of the corpus of the trust at G’s death is included in the augmented estate under a combination of Sections 2-205 and 2-206.
Section 2-206(3) requires the inclusion of the commuted value of S’s income interest. Note that, although S owns the income interest as of G’s death, the value of S’s income interest is not included under Section 2-207 because Section 2-207 only includes property interests that are not included under Section 2-206.
Section 2-205(2)(A) requires the inclusion of the commuted value of X’s remainder interest.
Example 23 – Corpus Passing to Surviving Spouse. Before death, and during marriage,
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G created an irrevocable inter-vivos trust, providing for the income to go to G for life, then for
the corpus of the trust to go to S. G died, survived by S.
The value of the corpus of the trust at G’s death is included in the augmented estate under Section 2-206(3). Note that, although S owns the corpus as of G’s death, the value of S’s ownership interest in the corpus is not included under Section 2-207 because Section 2-207 only includes property interests that are not included under Section 2-206.
Example 24 – TOD Registered Securities, POD Account, and Life Insurance Payable to Surviving Spouse. In Examples 5 and 8 in the Comment to Section 2-205, G designated S to take the securities on death, registered S as the beneficiary of the POD savings account, and named S as the beneficiary of the life-insurance policy.
The same values that were included in the augmented estate under Section 2-205(1) in those examples are included in the augmented estate under Section 2-206.
Example 25 – Joint Checking Account. G and S were registered as co-owners of a joint checking account. G contributed 75 percent of the funds in the account and S contributed 25 percent of the funds. G died, survived by S.
G’s ownership interest in the account immediately before death, determined under Section 6-211, was 75 percent of the account. Because that percentage ownership interest passed by right of survivorship to S at G’s death, 75 percent of the value of the account at G’s death is included in the augmented estate under Section 2-206. The remaining 25 percent of the account is included in the augmented estate under Section 2-207.
Historical Note. This Comment was added in 1993 and revised in 2008.
The value of the corpus of the trust at G’s death is included in the augmented estate under Section 2-206(3). Note that, although S owns the corpus as of G’s death, the value of S’s ownership interest in the corpus is not included under Section 2-207 because Section 2-207 only includes property interests that are not included under Section 2-206.
Example 24 – TOD Registered Securities, POD Account, and Life Insurance Payable to Surviving Spouse. In Examples 5 and 8 in the Comment to Section 2-205, G designated S to take the securities on death, registered S as the beneficiary of the POD savings account, and named S as the beneficiary of the life-insurance policy.
The same values that were included in the augmented estate under Section 2-205(1) in those examples are included in the augmented estate under Section 2-206.
Example 25 – Joint Checking Account. G and S were registered as co-owners of a joint checking account. G contributed 75 percent of the funds in the account and S contributed 25 percent of the funds. G died, survived by S.
G’s ownership interest in the account immediately before death, determined under Section 6-211, was 75 percent of the account. Because that percentage ownership interest passed by right of survivorship to S at G’s death, 75 percent of the value of the account at G’s death is included in the augmented estate under Section 2-206. The remaining 25 percent of the account is included in the augmented estate under Section 2-207.
Historical Note. This Comment was added in 1993 and revised in 2008.
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