Transfers Prior to Marriage and the Uniform Probate Code's Redesigned Elective Share - Why the Partnership is Not Yet Complete
Rena C. Seplowitz
Touro College - Jacob D. Fuchsberg Law Center
1991
Indiana Law Review, Vol. 25, No. 1, 1991
Touro Law Center Legal Studies Research Paper
Abstract:
This Article begins with an examination of the historical background of the common-law doctrine of antenuptial transfers in fraud of marital rights and its relationship to the elective share. Although this Article rejects the specific approach of this doctrine, the author finds that it provides invaluable insights into both intentional and unintentional spousal disinheritance and serves as an important guide in correcting a serious omission in the UPC and other elective share statutes. In the majority of cases invalidating an antenuptial conveyance, the decedent retained an interest in or power over the transferred property, although this element was never a formal requirement of the doctrine. Next, the Article examines several statutory approaches, including certain prenuptial transfers in the forced share, that may serve as alternative models to the common-law doctrine.
The Article will then analyze and evaluate the UPC's adoption of the marital-sharing theory of marriage, discuss a total partnership theory as an alternative, and examine the UPC's treatment of prenuptial transfers of property. Specifically, it will focus on whether the exclusion of these prenuptial transfers promotes the goals of marital partnership or support. In the course of its examination of the common-law doctrine and the statutory approaches, the Article will analyze the deficiencies of each model in light of the policies of the elective share. Finally, it will propose guidelines that better accomplish these goals and close a significant loophole in the UPC and other statutory and common-law schemes. The guidelines used should effectively and equitably protect the surviving spouse, produce greater certainty in property arrangements for the benefit of the decedent's family, and reduce the likelihood of litigation.
The Article will then analyze and evaluate the UPC's adoption of the marital-sharing theory of marriage, discuss a total partnership theory as an alternative, and examine the UPC's treatment of prenuptial transfers of property. Specifically, it will focus on whether the exclusion of these prenuptial transfers promotes the goals of marital partnership or support. In the course of its examination of the common-law doctrine and the statutory approaches, the Article will analyze the deficiencies of each model in light of the policies of the elective share. Finally, it will propose guidelines that better accomplish these goals and close a significant loophole in the UPC and other statutory and common-law schemes. The guidelines used should effectively and equitably protect the surviving spouse, produce greater certainty in property arrangements for the benefit of the decedent's family, and reduce the likelihood of litigation.
Number of Pages in PDF File: 70
Keywords: Uniform Probate Code, UPC, elective share, surviving spouse, right of election, total partnership theory, marital-sharing theory, testamentary substitutes, antenuptial transfers
Accepted Paper SeriesDate posted: December 18, 2013
Suggested Citation
Contact Information
Rena C. Seplowitz (Contact Author) Touro College - Jacob D. Fuchsberg Law Center ( email ) 225 Eastview Drive Central Islip, NY 11722 United States |
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