Can a surviving spouse claim an elective share in Alaska?
Full Question:
My wife and I lived in Alaska. She recently passed away due to old age and left most her property to our daughter. I'm behind on my bills and a larger share of my wife's property would be helpful in paying them. Am I entitled to a larger share of my wife's property?
04/07/2017 |
Category: Wills and Es... ยป Elective Sha... |
State: Alaska |
#35319
Answer:
Alaska Stat. Ann. § 13.12.202
Elective share
“(a) The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in AS 13.12.201-13.12.214, to take an elective share amount equal to one-third of the augmented estate.
(b) If the sum of the amounts described in AS 13.12.207, 13.12.209(a)(1), and that part of the elective share amount payable from the decedent's probate estate and nonprobate transfers to others under AS 13.12.209(b)-(c) is less than $50,000, the surviving spouse is entitled to a supplemental elective share amount equal to $50,000, minus the sum of the amounts described in AS 13.12.207 and 13.12.209(a)(1), (b), and (c). The supplemental elective share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set out in AS 13.12.209(b)-(c).
(c) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective share and supplemental elective share amounts.
(d) The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.”
Alaska Stat. Ann. § 13.12.204
Decedent's net probate estate
The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable claims.
Alaska Stat. Ann. § 13.12.203
Composition of the augmented estate
Subject to AS 13.12.208, the value of the augmented estate, to the extent provided in AS 13.12.204-13.12.207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others.
Alaska Stat. Ann. § 13.12.211
Proceeding for elective share; time limit
“(a) Except as provided in (b) of this section, the election shall be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within six months after the probate of the decedent's will, whichever limitation expires later. The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. Except as provided in (b) of this section, the decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the petition is filed more than nine months after the decedent's death.
(b) Within nine months after the decedent's death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent's death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court for cause shown by the surviving spouse may extend the time for election. If the court grants the spouse's petition for an extension, the decedent's nonprobate transfers to others are not excluded from the augmented estate for the purpose of computing the elective share and supplemental elective share amounts, if the spouse makes an election by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within the time allowed by the extension.
(c) The surviving spouse may withdraw the surviving spouse's demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the elective share and supplemental elective share amounts, and shall order payment of these amounts from the assets of the augmented estate or by contribution as appears appropriate under AS 13.12.209 and 13.12.210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of a person who has an interest in the fund or property or who has possession of the fund or the property, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but a person is not subject to contribution in a greater amount than the person would have been under AS 13.12.209 and 13.12.210 if relief had been secured against all persons subject to contribution.
(e) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.”
Alaska Stat. Ann. § 13.12.209
Sources from which elective share payable
(a) In a proceeding for an elective share, the following are applied first to satisfy the elective share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:
(1) amounts included in the augmented estate under AS 13.12.204 that pass or have passed to the surviving spouse by testate or intestate succession, and amounts included in the augmented estate under AS 13.12.206; and
(2) amounts included in the augmented estate under AS 13.12.207, up to two-thirds of the augmented estate.
(b) If, after the application of (a) of this section, the elective share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under AS 13.12.205(a)(3)(A) or (C), are applied first to satisfy the unsatisfied balance of the elective share amount or the supplemental elective share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others shall be applied so that liability for the unsatisfied balance of the elective share amount or for the supplemental elective share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of the recipients' interests in the decedent's probate estate and that portion of the decedent's nonprobate transfers to others.
(c) If, after the application of (a) and (b) of this section, the elective share or supplemental elective share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others shall be applied so that liability for the unsatisfied balance of the elective share or supplemental elective share amount is equitably apportioned among the recipients of that remaining portion of the decedent's nonprobate transfers to others in proportion to the value of the recipients' interests in the decedent's nonprobate transfers to others.
Alaska Stat. Ann. § 13.12.212
Right of election personal to surviving spouse; incapacitated surviving spouse
(a) The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the court under AS 13.12.211(a). If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by the surviving spouse's conservator, guardian, or agent under the authority of a power of attorney.
(b) If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the 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 AS 13.12.209(b) and (c) shall be placed in a custodial trust for the benefit of the surviving spouse under AS 13.60 (Alaska Uniform Custodial Trust Act), except as provided in (c)-(e) of this section. 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 the purposes of the custodial trust established by this subsection,
(1) the electing guardian, conservator, or agent is the custodial trustee;
(2) the surviving spouse is the beneficiary; and
(3) the custodial trust is determined 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) An incapacitated beneficiary or a person acting on behalf of an incapacitated beneficiary may not terminate a custodial trust established under (b) of this section; but if the beneficiary 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.
(d) Expenditures by the custodial trustee of the property of a custodial trust established under (b) of this section shall be made with regard to other support, income, and property of the beneficiary 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.
(e) Upon the beneficiary's death, the custodial trustee shall transfer the unexpended property of a custodial trust established under (b) of this section in the following order:
(1) under the residuary clause, if any, of the will of the beneficiary's predeceased spouse against whom the elective share was taken, as if the predeceased spouse died immediately after the beneficiary;
(2) to the predeceased spouse's heirs under AS 13.12.711.
Alaska Stat. Ann. § 13.12.213
Waiver of right to elect and of other rights
(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or to any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that
(1) the surviving spouse did not execute the waiver voluntarily; or
(2) the waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse
(A) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
(B) did not voluntarily and expressly waive, in writing, a right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(d) Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to the spouse from the other by intestate succession or by virtue of a will executed before the waiver or property settlement.
Alaska Stat. Ann. § 13.12.214
Protection of payors and other third parties
(a) Although under AS 13.12.205 a payment, item of property, or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or spouse's representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed.
(b) The written notice under (a) of this section of intention to file a petition for the elective share or that a petition for the elective share has been filed shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit an item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if proceedings have not been commenced, to or with the court located in the judicial district of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under AS 13.12.211(d), shall order disbursement in accordance with the determination. If a petition is not filed in the court within the specified time under AS 13.12.211(a) or, if filed, the demand for an elective share is withdrawn under AS 13.12.211(c), the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.
(c) Upon petition to the court by the beneficiary designated in a governing instrument, a court may order that all or part of the property paid or transferred into court under (b) of this section be paid to the beneficiary in an amount and subject to conditions consistent with AS 13.12.201-13.12.214.
