Chapter 31 - Wills, Trusts, and Advanced Directives
10. Oral wills made by persons in their last illness or by soldiers and sailors in actual
combat are nuncupative wills.
11. Nuncupative are valid only in some states and are restricted to the giving of personal
B. Protection of Spouses and Children
1. Protection of Spouses
a. Some states provide for a family allowance which is an amount of money taken
from the decedent’s estate and given to the family to meet its immediate needs
while the estate is being probated.
b. A homestead exemption puts the family home beyond the reach of creditors up to
a certain limit.
c. Exempt property is certain property of a decedent that passes to the surviving
spouse or children and is beyond the reach of creditors.
d. In some states dower and curtesy are available, providing surviving spouses with
certain property rights in real property.
e. Surviving spouses are assured a share of a deceased spouse’s estate and may elect
to take a forced, or elective, share.
2. Protection of Children
a. Children who can prove that they were mistakenly, rather than intentionally, left
out of a parent’s will are protected by the laws of most states.
b. A testator who wishes to disinherit a child should name the child in the will and
make the statement that the child was intentionally omitted.
c. Adopted children are given the same legal rights as natural children.
C. Advantages and Disadvantages of the Windsor Ruling
1. The Windsor case had a tremendous impact on financial planning.
2. After Windsor, the surviving spouse of a same sex marriage could claim an
inheritance as an exemption when paying federal taxes.
3. Because of the Court’s ruling in Windsor, employer-provided health coverage for an
employee’s same sex spouse was no longer taxable.
4. After Windsor, same sex married couples were no longer able to file income tax
returns as single individuals.
D. The Obergefell v. Hodges Case
1. In the case of Obergefell v. Hodges, five justices ruled that any state action, legislative
or constitutional, that limited the definition of marriage to opposite sex couples
violated the due process and equal protection clauses of the 14th Amendment.
2. The majority ran through a series of cases, each one ruling that under the Due Process
Clause the fundamental right to be married cannot be procedurally dismantled or
limited without some compelling state reason to do so.
E. Changes in Estate Planning
1. Spouses in a same sex marriage can now claim all of the protection methods available
to traditional spouses in estate planning.
2. The family allowance, the homestead exemption, and the exempt property provisions
should be available to same sex married couples.
3. Obergefell may result in additional questions involving restrictions on marriage such
as provisions regarding marrying several people simultaneously or marrying someone
of a close genetic relationship.
Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or
distribution without the prior written consent of McGraw-Hill Education.