SECTION 2-208. EXCLUSIONS, VALUATION, AND OVERLAPPING
APPLICATION. Uniform Probate Code
(a) [Exclusions.] The value of any property is excluded from the decedent’s nonprobate transfers to others:
(1) to the extent the decedent received adequate and full consideration in money or money’s worth for a transfer of the property; or
(2) if the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.
(b) [Valuation.] The value of property:
(1) Included in the augmented estate under Section 2-205, 2-206, or 2-207 is
reduced in each category by enforceable claims against the included property; and
(2) includes the commuted value of any present or future interest and the
(a) [Exclusions.] The value of any property is excluded from the decedent’s nonprobate transfers to others:
(1) to the extent the decedent received adequate and full consideration in money or money’s worth for a transfer of the property; or
(2) if the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.
(b) [Valuation.] The value of property:
(1) Included in the augmented estate under Section 2-205, 2-206, or 2-207 is
reduced in each category by enforceable claims against the included property; and
(2) includes the commuted value of any present or future interest and the
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commuted value of amounts payable under any trust, life insurance settlement option, annuity
contract, public or private pension, disability compensation, death benefit or retirement plan, or
any similar arrangement, exclusive of the federal Social Security system.
(c) [Overlapping Application; No Double Inclusion.] In case of overlapping application to the same property of the paragraphs or subparagraphs of Section 2-205, 2-206, or 2-207, the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value.
Comment
Subsection (a). This subsection excludes from the decedent’s nonprobate transfers to others the value of any property (1) to the extent that the decedent received adequate and full consideration in money or money’s worth for a transfer of the property or (2) if the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.
Consenting to Split-Gift Treatment Not Consent to the Transfer. Spousal consent to split-gift treatment under I.R.C. § 2513 does not constitute written joinder of or consent to the transfer by the spouse for purposes of subsection (a).
Obtaining the Charitable Deduction for Transfers Coming Within Section 2-205(2) or (3). Because, under Section 2-201(8), the term “right to income” includes a right to payments under an annuity trust or a unitrust, the value of a charitable remainder trust established by a married grantor without written spousal consent or joinder would be included in the decedent’s nonprobate transfers to others under Section 2-205(2)(A). Consequently, a married grantor planning to establish a charitable remainder trust is advised to obtain the written consent of his or her spouse to the transfer, as provided in Section 2-208(a), in order to be assured of qualifying for the charitable deduction.
Similarly, outright gifts made by a married donor within two years preceding death are included in the augmented estate under Section 2-205(3)(C) to the extent that the aggregate gifts to any one donee exceed the amount excludable from taxable gifts under 26 U.S.C. Section 2503(b) [or its successor] on the date next preceding the date of the decedent’s death (or, if referring to federal law is considered an unlawful delegation of legislative power, $12,000) in either of the two years. Consequently, a married donor planning to donate more than that amount to any charitable organization within a twelve-month period is advised to obtain the written consent of his or her spouse to the transfer, as provided in Section 2-208(a), in order to be assured of qualifying for the charitable deduction.
Spousal Waiver of ERISA Benefits. Under the Employee Retirement Income Security
(c) [Overlapping Application; No Double Inclusion.] In case of overlapping application to the same property of the paragraphs or subparagraphs of Section 2-205, 2-206, or 2-207, the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value.
Comment
Subsection (a). This subsection excludes from the decedent’s nonprobate transfers to others the value of any property (1) to the extent that the decedent received adequate and full consideration in money or money’s worth for a transfer of the property or (2) if the property was transferred with the written joinder of, or if the transfer was consented to in writing before or after the transfer by, the surviving spouse.
Consenting to Split-Gift Treatment Not Consent to the Transfer. Spousal consent to split-gift treatment under I.R.C. § 2513 does not constitute written joinder of or consent to the transfer by the spouse for purposes of subsection (a).
Obtaining the Charitable Deduction for Transfers Coming Within Section 2-205(2) or (3). Because, under Section 2-201(8), the term “right to income” includes a right to payments under an annuity trust or a unitrust, the value of a charitable remainder trust established by a married grantor without written spousal consent or joinder would be included in the decedent’s nonprobate transfers to others under Section 2-205(2)(A). Consequently, a married grantor planning to establish a charitable remainder trust is advised to obtain the written consent of his or her spouse to the transfer, as provided in Section 2-208(a), in order to be assured of qualifying for the charitable deduction.
Similarly, outright gifts made by a married donor within two years preceding death are included in the augmented estate under Section 2-205(3)(C) to the extent that the aggregate gifts to any one donee exceed the amount excludable from taxable gifts under 26 U.S.C. Section 2503(b) [or its successor] on the date next preceding the date of the decedent’s death (or, if referring to federal law is considered an unlawful delegation of legislative power, $12,000) in either of the two years. Consequently, a married donor planning to donate more than that amount to any charitable organization within a twelve-month period is advised to obtain the written consent of his or her spouse to the transfer, as provided in Section 2-208(a), in order to be assured of qualifying for the charitable deduction.
Spousal Waiver of ERISA Benefits. Under the Employee Retirement Income Security
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Act (ERISA), death benefits under an employee benefit plan subject to ERISA must be paid in
the form of an annuity to the surviving spouse. A married employee wishing to designate
someone other than the spouse must obtain a waiver from the spouse. As amended in 1984 by
the Retirement Equity Act, ERISA requires each employee benefit plan subject to its provisions
to provide that an election of a waiver shall not take effect unless
(1) the spouse of the participant consents in writing to such election,
(2) such election designates a beneficiary (or form of benefits) which may not be changed without spousal consent (or the consent of the spouse expressly permits designation by the participant without any requirement of further consent by the spouse), and
(3) the spouse’s consent acknowledges the effect of such election and is witnessed by a plan representative or a notary public.
See 29 U.S.C. § 1055(c) (1988); Int. Rev. Code § 417(a). Any spousal waiver that complies with these requirements would satisfy Section 2-208(a) and would serve to exclude the value of the death benefits from the decedent’s nonprobate transfers to others.
Cross Reference. See also Section 2-213 and Comment.
Subsection (c). The application of subsection (c) is illustrated in Example 32 in the
Comment to Section 2-207.
Historical Note. This Comment was added in 1993. Subsection (a) was amended in 2008 by adding the phrase “before or after the transfer.”
(1) the spouse of the participant consents in writing to such election,
(2) such election designates a beneficiary (or form of benefits) which may not be changed without spousal consent (or the consent of the spouse expressly permits designation by the participant without any requirement of further consent by the spouse), and
(3) the spouse’s consent acknowledges the effect of such election and is witnessed by a plan representative or a notary public.
See 29 U.S.C. § 1055(c) (1988); Int. Rev. Code § 417(a). Any spousal waiver that complies with these requirements would satisfy Section 2-208(a) and would serve to exclude the value of the death benefits from the decedent’s nonprobate transfers to others.
Cross Reference. See also Section 2-213 and Comment.
Subsection (c). The application of subsection (c) is illustrated in Example 32 in the
Comment to Section 2-207.
Historical Note. This Comment was added in 1993. Subsection (a) was amended in 2008 by adding the phrase “before or after the transfer.”
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