SECTION 2-212. RIGHT OF ELECTION PERSONAL TO SURVIVING
SPOUSE; INCAPACITATED SURVIVING SPOUSE. Uniform Probate Code
http://www.uniformlaws.org/shared/docs/probate%20code/upc%202010.pdf
(a) [Surviving Spouse Must Be Living at Time of Election.] The right of election may be
http://www.uniformlaws.org/shared/docs/probate%20code/upc%202010.pdf
(a) [Surviving Spouse Must Be Living at Time of Election.] The right of election may be
116
exercised only by a surviving spouse who is living when the petition for the elective share is
filed in the court under Section 2-211(a). If the election is not exercised by the surviving spouse
personally, it may be exercised on the surviving spouse’s behalf by his [or her] conservator,
guardian, or agent under the authority of a power of attorney.
Alternative A
(b) [Incapacitated Surviving Spouse.] If the election is exercised on behalf of a surviving spouse who is an incapacitated person, that portion of the elective-share and supplemental elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others under Section 2-209(c) and (d) must be placed in a custodial trust for the benefit of the surviving spouse under the provisions of the [Enacting state] Uniform Custodial Trust Act, except as modified below. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. For purposes of the custodial trust established by this subsection, (i) the electing guardian, conservator, or agent is the custodial trustee, (ii) the surviving spouse is the beneficiary, and (iii) the custodial trust is deemed to have been created by the decedent spouse by written transfer that takes effect at the decedent spouse’s death and that directs the custodial trustee to administer the custodial trust as for an incapacitated beneficiary.
(c) [Custodial Trust.] For the purposes of subsection (b), the [Enacting state] Uniform Custodial Trust Act must be applied as if Section 6(b) thereof were repealed and Sections 2(e), 9(b), and 17(a) were amended to read as follows:
(1) Neither an incapacitated beneficiary nor anyone acting on behalf of an incapacitated beneficiary has a power to terminate the custodial trust; but if the beneficiary
Alternative A
(b) [Incapacitated Surviving Spouse.] If the election is exercised on behalf of a surviving spouse who is an incapacitated person, that portion of the elective-share and supplemental elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others under Section 2-209(c) and (d) must be placed in a custodial trust for the benefit of the surviving spouse under the provisions of the [Enacting state] Uniform Custodial Trust Act, except as modified below. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. For purposes of the custodial trust established by this subsection, (i) the electing guardian, conservator, or agent is the custodial trustee, (ii) the surviving spouse is the beneficiary, and (iii) the custodial trust is deemed to have been created by the decedent spouse by written transfer that takes effect at the decedent spouse’s death and that directs the custodial trustee to administer the custodial trust as for an incapacitated beneficiary.
(c) [Custodial Trust.] For the purposes of subsection (b), the [Enacting state] Uniform Custodial Trust Act must be applied as if Section 6(b) thereof were repealed and Sections 2(e), 9(b), and 17(a) were amended to read as follows:
(1) Neither an incapacitated beneficiary nor anyone acting on behalf of an incapacitated beneficiary has a power to terminate the custodial trust; but if the beneficiary
117
regains capacity, the beneficiary then acquires the power to terminate the custodial trust by
delivering to the custodial trustee a writing signed by the beneficiary declaring the termination.
If not previously terminated, the custodial trust terminates on the death of the beneficiary.
(2) If the beneficiary is incapacitated, the custodial trustee shall expend so much or all of the custodial trust property as the custodial trustee considers advisable for the use and benefit of the beneficiary and individuals who were supported by the beneficiary when the beneficiary became incapacitated, or who are legally entitled to support by the beneficiary. Expenditures may be made in the manner, when, and to the extent that the custodial trustee determines suitable and proper, without court order but with regard to other support, income, and property of the beneficiary [exclusive of] [and] benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the beneficiary must qualify on the basis of need.
(3) Upon the beneficiary’s death, the custodial trustee shall transfer the unexpended custodial trust property, in the following order: (i) under the residuary clause, if any, of the will of the beneficiary’s predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the beneficiary; or (ii) to that predeceased spouse’s heirs under Section 2-711 of [this state’s] Uniform Probate Code.
Alternative B
(b) [Incapacitated Surviving Spouse.] If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court must set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others under Section 2-209(c) and (d) and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of
(2) If the beneficiary is incapacitated, the custodial trustee shall expend so much or all of the custodial trust property as the custodial trustee considers advisable for the use and benefit of the beneficiary and individuals who were supported by the beneficiary when the beneficiary became incapacitated, or who are legally entitled to support by the beneficiary. Expenditures may be made in the manner, when, and to the extent that the custodial trustee determines suitable and proper, without court order but with regard to other support, income, and property of the beneficiary [exclusive of] [and] benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the beneficiary must qualify on the basis of need.
(3) Upon the beneficiary’s death, the custodial trustee shall transfer the unexpended custodial trust property, in the following order: (i) under the residuary clause, if any, of the will of the beneficiary’s predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the beneficiary; or (ii) to that predeceased spouse’s heirs under Section 2-711 of [this state’s] Uniform Probate Code.
Alternative B
(b) [Incapacitated Surviving Spouse.] If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court must set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others under Section 2-209(c) and (d) and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of
118
this subsection, an election on behalf of a surviving spouse by an agent under a durable power of
attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The
trustee must administer the trust in accordance with the following terms and such additional
terms as the court determines appropriate:
(1) Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse [exclusive of] [and] benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.
(2) During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
(3) Upon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse’s heirs under Section 2-711.
End of Alternatives Comment
Subsection (a). Subsection (a) is revised to make it clear that the right of election may be exercised only by or on behalf of a living surviving spouse. If the election is not made by the
(1) Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse [exclusive of] [and] benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.
(2) During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
(3) Upon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse’s heirs under Section 2-711.
End of Alternatives Comment
Subsection (a). Subsection (a) is revised to make it clear that the right of election may be exercised only by or on behalf of a living surviving spouse. If the election is not made by the
119
surviving spouse personally, it can be made on behalf of the surviving spouse by the spouse’s
conservator, guardian, or agent. In any case, the surviving spouse must be alive when the
election is made. The election cannot be made on behalf of a deceased surviving spouse.
Alternative A: Subsections (b) and (c). If the election is made on behalf of a surviving spouse who is an “incapacitated person,” as defined in Section 5-103(7), that portion of the elective-share and supplemental elective-share amounts which, under Section 2-209(c) and (d), are payable from the decedent’s probate estate and nonprobate transfers to others must go into a custodial trust under the Uniform Custodial Trust Act, as adjusted in subsection (c).
If the election is made on behalf of the surviving spouse by his or her guardian or conservator, the surviving spouse is by definition an “incapacitated person.” If the election is made by the surviving spouse’s agent under a durable power of attorney, the surviving spouse is presumed to be an “incapacitated person”; the presumption is rebuttable.
The terms of the custodial trust are governed by the Uniform Custodial Trust Act, except as adjusted in subsection (c).
The custodial trustee is authorized to expend the custodial trust property for the use and benefit of the surviving spouse to the extent the custodial trustee considers it advisable. In determining the amounts, if any, to be expended for the spouse’s benefit, the custodial trustee is directed to take into account the spouse’s other support, income, and property; these items would include governmental benefits such as Social Security and Medicare.
Bracketed language in subsection (c)(2) (and in Alternative subsection (b)(1)) gives enacting states a choice as to whether governmental benefits for which the spouse must qualify on the basis of need, such as Medicaid, are also to be considered. If so, the enacting state should include the bracketed word “and” but not the bracketed phrase “exclusive of” in its enactment; if not, the enacting state should include the bracketed phrase “exclusive of” and not include the bracketed word “and” in its enactment.
At the surviving spouse’s death, the remaining custodial trust property does not go to the surviving spouse’s estate, but rather under the residuary clause of the will of the predeceased spouse whose probate estate and nonprobate transfers to others were the source of the property in the custodial trust, as if the predeceased spouse died immediately after the surviving spouse. In the absence of a residuary clause, the property goes to the predeceased spouse’s heirs. See Section 2-711.
Alternative B: Subsection (b). For states that have not enacted the Uniform Custodial Trust Act, an Alternative subsection (b) is provided under which the court must set aside that portion of the elective-share and supplemental elective-share amounts which, under Section 2- 209(c) and (d), are due from the decedent’s probate estate and nonprobate transfers to others and must appoint a trustee to administer that property for the support of the surviving spouse, in accordance with the terms set forth in Alternative subsection (b).
Planning for an Incapacitated Surviving Spouse Not Disrupted. Note that the portion
Alternative A: Subsections (b) and (c). If the election is made on behalf of a surviving spouse who is an “incapacitated person,” as defined in Section 5-103(7), that portion of the elective-share and supplemental elective-share amounts which, under Section 2-209(c) and (d), are payable from the decedent’s probate estate and nonprobate transfers to others must go into a custodial trust under the Uniform Custodial Trust Act, as adjusted in subsection (c).
If the election is made on behalf of the surviving spouse by his or her guardian or conservator, the surviving spouse is by definition an “incapacitated person.” If the election is made by the surviving spouse’s agent under a durable power of attorney, the surviving spouse is presumed to be an “incapacitated person”; the presumption is rebuttable.
The terms of the custodial trust are governed by the Uniform Custodial Trust Act, except as adjusted in subsection (c).
The custodial trustee is authorized to expend the custodial trust property for the use and benefit of the surviving spouse to the extent the custodial trustee considers it advisable. In determining the amounts, if any, to be expended for the spouse’s benefit, the custodial trustee is directed to take into account the spouse’s other support, income, and property; these items would include governmental benefits such as Social Security and Medicare.
Bracketed language in subsection (c)(2) (and in Alternative subsection (b)(1)) gives enacting states a choice as to whether governmental benefits for which the spouse must qualify on the basis of need, such as Medicaid, are also to be considered. If so, the enacting state should include the bracketed word “and” but not the bracketed phrase “exclusive of” in its enactment; if not, the enacting state should include the bracketed phrase “exclusive of” and not include the bracketed word “and” in its enactment.
At the surviving spouse’s death, the remaining custodial trust property does not go to the surviving spouse’s estate, but rather under the residuary clause of the will of the predeceased spouse whose probate estate and nonprobate transfers to others were the source of the property in the custodial trust, as if the predeceased spouse died immediately after the surviving spouse. In the absence of a residuary clause, the property goes to the predeceased spouse’s heirs. See Section 2-711.
Alternative B: Subsection (b). For states that have not enacted the Uniform Custodial Trust Act, an Alternative subsection (b) is provided under which the court must set aside that portion of the elective-share and supplemental elective-share amounts which, under Section 2- 209(c) and (d), are due from the decedent’s probate estate and nonprobate transfers to others and must appoint a trustee to administer that property for the support of the surviving spouse, in accordance with the terms set forth in Alternative subsection (b).
Planning for an Incapacitated Surviving Spouse Not Disrupted. Note that the portion
120
of the elective-share or supplemental elective-share amounts that go into the custodial or support
trust is that portion due from the decedent’s probate estate and nonprobate transfers to others
under Section 2-209(c) and (d). These amounts constitute the involuntary transfers to the
surviving spouse under the elective-share system.
Amounts voluntarily transferred to the surviving spouse under the decedent’s will, by intestacy, or by nonprobate transfer, if any, do not go into the custodial or support trust. Thus, estate planning measures deliberately established for a surviving spouse who is incapacitated are not disrupted. For example, the decedent’s will might establish a trust that qualifies for or that can be elected as qualifying for the federal estate tax marital deduction. Although the value of the surviving spouse’s interests in such a trust count toward satisfying the elective-share amount under Section 2-209(a)(1), the trust itself is not dismantled by virtue of Section 2-212(b) in order to force that property into the nonqualifying custodial or support trust.
Rationale. The approach of this section is based on a general expectation that most surviving spouses are, at the least, generally aware of and accept their decedents’ overall estate plans and are not antagonistic to them. Consequently, to elect the elective share, and not have the disposition of that part of it that is payable from the decedent’s probate estate and nonprobate transfers to others under Section 2-209(c) and (d) governed by subsections (b) and (c), the surviving spouse must not be an incapacitated person. When the election is made by or on behalf of a surviving spouse who is not an incapacitated person, the surviving spouse has personally signified his or her opposition to the decedent’s overall estate plan.
If the election is made on behalf of a surviving spouse who is an incapacitated person, subsections (b) and (c) control the disposition of that part of the elective-share amount or supplemental elective-share amount payable under Section 2-209(c) and (d) from the decedent’s probate estate and nonprobate transfers to others. The purpose of subsections (b) and (c), generally speaking, is to assure that that part of the elective share is devoted to the personal economic benefit and needs of the surviving spouse, but not to the economic benefit of the surviving spouse’s heirs or devisees.
Historical Note. This comment was revised in 1993 and 2008.
Amounts voluntarily transferred to the surviving spouse under the decedent’s will, by intestacy, or by nonprobate transfer, if any, do not go into the custodial or support trust. Thus, estate planning measures deliberately established for a surviving spouse who is incapacitated are not disrupted. For example, the decedent’s will might establish a trust that qualifies for or that can be elected as qualifying for the federal estate tax marital deduction. Although the value of the surviving spouse’s interests in such a trust count toward satisfying the elective-share amount under Section 2-209(a)(1), the trust itself is not dismantled by virtue of Section 2-212(b) in order to force that property into the nonqualifying custodial or support trust.
Rationale. The approach of this section is based on a general expectation that most surviving spouses are, at the least, generally aware of and accept their decedents’ overall estate plans and are not antagonistic to them. Consequently, to elect the elective share, and not have the disposition of that part of it that is payable from the decedent’s probate estate and nonprobate transfers to others under Section 2-209(c) and (d) governed by subsections (b) and (c), the surviving spouse must not be an incapacitated person. When the election is made by or on behalf of a surviving spouse who is not an incapacitated person, the surviving spouse has personally signified his or her opposition to the decedent’s overall estate plan.
If the election is made on behalf of a surviving spouse who is an incapacitated person, subsections (b) and (c) control the disposition of that part of the elective-share amount or supplemental elective-share amount payable under Section 2-209(c) and (d) from the decedent’s probate estate and nonprobate transfers to others. The purpose of subsections (b) and (c), generally speaking, is to assure that that part of the elective share is devoted to the personal economic benefit and needs of the surviving spouse, but not to the economic benefit of the surviving spouse’s heirs or devisees.
Historical Note. This comment was revised in 1993 and 2008.
No comments:
Post a Comment