In Utah, as in every state, a surviving spouse has certain inheritance rights in the assets of their deceased husband or wife. Unless these rights are expressly waived, they exist even if the decedent attempted or intended to leave their entire estate to their children or other heirs. Since the issue of spousal inheritance rights often arises when the surviving children are not also the children of the surviving spouse, this discussion will assume that the relationship of the surviving spouse and decedent's children is that of stepparent and stepchildren.
Any part of a decedent's estate not effectively disposed of by will, trust, right of survivorship, beneficiary designation, etc. is considered part of their "intestate estate" and passes by the law of intestate succession. While the term "intestate estate” is not expressly defined in the Utah Uniform Probate Code, the simple fact that Part 1 of Title 75 of the Code determines who receives a decedent's assets can only mean that "intestate estate" refers to a decedent's assets that remain after all will, trust, and nonprobate transfers are effectuated.
"The intestate share of a decedent's surviving spouse is... the first $75,000, plus 1/2 of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse." Utah Code 75-2-102(1)(b). This seems simple enough, but it is relatively uncommon for all or even most of a decedent's assets to actually become part of their intestate estate. In all likelihood, most if not all, of a decedent's assets will be governed by a last will or will pass pursuant to the terms of a trust agreement, right of survivorship, or beneficiary designation. The two questions that often naturally arise are: What if the surviving spouse receives more than their statutory share of the intestate estate, and what if the surviving spouse is left very little?
One of the more confusing sections of the Utah Uniform Probate Code is the following: "For purposes of [75-2-102(1)(b)], if the intestate estate passes to both the decedent's surviving spouse and to other heirs, then any nonprobate transfer, as defined in Section 75-2-206, received by the surviving spouse is added to the probate estate in calculating the intestate heirs' shares and is conclusively treated as an advancement under Section 75-2-109 in determining the spouse's share." Utah Code 75-2-102(2). One of the confusing aspects of this section is that it borrows definitions and concepts from the "Elective Share of Surviving Spouse" statute, discussed below, even though the elective share is an entirely distinct concept from the intestate share of a surviving spouse. The reference to "advancements" adds to the confusion.
In plainer terms, Utah Code 75-2-102(2) is saying that if the remainder of a decedent's assets after the effectuation of rights of survivorship, beneficiary designations, etc. is greater than $75,000 (since that amount all passes to the surviving spouse anyway), and if a surviving spouse has already received assets from the decedent by virtue of being a surviving joint tenant, designated beneficiary, etc., then the surviving spouse's share of the intestate estate can be reduced, but without any requirement to refund assets already received, thereby increasing the intestate share of the decedent's other heirs such as stepchildren. The recalculation of the heirs' shares is done by adding up a theoretical "hotchpot" estate that includes "advancement" assets already received by the surviving spouse, as I explained in more detail in a prior post. Accordingly, in answer to the first question posed above, a surviving spouse can retain more more than their intestate share.
As for the second question posed above, the "elective share" is available to a surviving spouse who has not waived the right via a premarital agreement and who ends up left with very little, whether that is due to being expressly disinherited by a will or trust or due to stepchildren or other heirs being granted right of survivorship, designated as beneficiaries of accounts, etc. While the calculation and effectuation of the elective share can be complex, the key point is that a surviving spouse has the right "to take an elective-share amount equal to the value of 1/3 of the augmented estate." Utah Code 75-2-202(1). For maximum protection, a petition for an elective share must be filed within the earlier of nine months after the date of the decedent's death or six months after the probate of the decedent's will. See Utah Code 75-2-211(1). This is a very high-level introduction to stepparent inheritance rights and illustrates why competent legal counsel if critical in preserving these rights.
Any part of a decedent's estate not effectively disposed of by will, trust, right of survivorship, beneficiary designation, etc. is considered part of their "intestate estate" and passes by the law of intestate succession. While the term "intestate estate” is not expressly defined in the Utah Uniform Probate Code, the simple fact that Part 1 of Title 75 of the Code determines who receives a decedent's assets can only mean that "intestate estate" refers to a decedent's assets that remain after all will, trust, and nonprobate transfers are effectuated.
"The intestate share of a decedent's surviving spouse is... the first $75,000, plus 1/2 of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse." Utah Code 75-2-102(1)(b). This seems simple enough, but it is relatively uncommon for all or even most of a decedent's assets to actually become part of their intestate estate. In all likelihood, most if not all, of a decedent's assets will be governed by a last will or will pass pursuant to the terms of a trust agreement, right of survivorship, or beneficiary designation. The two questions that often naturally arise are: What if the surviving spouse receives more than their statutory share of the intestate estate, and what if the surviving spouse is left very little?
One of the more confusing sections of the Utah Uniform Probate Code is the following: "For purposes of [75-2-102(1)(b)], if the intestate estate passes to both the decedent's surviving spouse and to other heirs, then any nonprobate transfer, as defined in Section 75-2-206, received by the surviving spouse is added to the probate estate in calculating the intestate heirs' shares and is conclusively treated as an advancement under Section 75-2-109 in determining the spouse's share." Utah Code 75-2-102(2). One of the confusing aspects of this section is that it borrows definitions and concepts from the "Elective Share of Surviving Spouse" statute, discussed below, even though the elective share is an entirely distinct concept from the intestate share of a surviving spouse. The reference to "advancements" adds to the confusion.
In plainer terms, Utah Code 75-2-102(2) is saying that if the remainder of a decedent's assets after the effectuation of rights of survivorship, beneficiary designations, etc. is greater than $75,000 (since that amount all passes to the surviving spouse anyway), and if a surviving spouse has already received assets from the decedent by virtue of being a surviving joint tenant, designated beneficiary, etc., then the surviving spouse's share of the intestate estate can be reduced, but without any requirement to refund assets already received, thereby increasing the intestate share of the decedent's other heirs such as stepchildren. The recalculation of the heirs' shares is done by adding up a theoretical "hotchpot" estate that includes "advancement" assets already received by the surviving spouse, as I explained in more detail in a prior post. Accordingly, in answer to the first question posed above, a surviving spouse can retain more more than their intestate share.
As for the second question posed above, the "elective share" is available to a surviving spouse who has not waived the right via a premarital agreement and who ends up left with very little, whether that is due to being expressly disinherited by a will or trust or due to stepchildren or other heirs being granted right of survivorship, designated as beneficiaries of accounts, etc. While the calculation and effectuation of the elective share can be complex, the key point is that a surviving spouse has the right "to take an elective-share amount equal to the value of 1/3 of the augmented estate." Utah Code 75-2-202(1). For maximum protection, a petition for an elective share must be filed within the earlier of nine months after the date of the decedent's death or six months after the probate of the decedent's will. See Utah Code 75-2-211(1). This is a very high-level introduction to stepparent inheritance rights and illustrates why competent legal counsel if critical in preserving these rights.
.JPG)
