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In re Estate of Maldonado7/22/2005
ed in concluding that her interest in a wrongful death recovery is property that she owned at the time of her husband's death. The GAL counters that such a property interest is owned at death by the surviving spouse and should be included in the augmented estate. Resolution of this question turns on interpretation of Alaska's elective share statute.
A. Alaska's Elective Share Law
An elective share statute entitles a surviving spouse to choose to take as provided by the decedent's will or to take a statutory percentage of the decedent's augmented estate. Alaska's elective share law entitles the surviving spouse to take an elective share equal to one-third of the decedent's augmented estate. Elective share laws were enacted in response to the concern, especially in common law property states, that the surviving spouse would not receive a "fair share" of the decedent's estate where the decedent's will and non-probate transfers unreasonably favored other parties. Because Florian devised to Barbara her elective share under the statute, Barbara's elective share ceased to be an "election"; it is her primary inheritance under the will.
An augmented estate consists of the sum of four types of property: (1) the decedent's net probate estate; (2) the decedent's non-probate transfers to parties other than the surviving spouse; (3) the decedent's non-probate transfers to the surviving spouse; and (4) the surviving spouse's property and non-probate transfers to others. All property under these headings must be included in the augmented estate, "whether real or personal, movable or immovable, tangible or intangible, wherever situated."
Property is defined elsewhere in the probate code as "anything that may be the subject of ownership, and includes both real and personal property and an interest in real or personal property."
The drafters of the Uniform Probate Code (UPC) gave two primary justifications for augmenting the probate estate to include various forms of property not actually owned by the decedent at death, when calculating the elective share:
(1) to prevent the owner of wealth from making arrangements which transmit his property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share, and (2) to prevent the surviving spouse from electing a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent either during the lifetime of the decedent or at death by life insurance, joint tenancy assets and other non-probate arrangements.
The elective share amount under the augmented estate calculation thus attempts to strike a balance between under- and over-inheritance to the surviving spouse.
In 1990 the elective share and augmented estate provisions of the UPC were overhauled with the goal of bringing "elective-share law into line with the contemporary view of marriage as an economic partnership." In 1996 the Alaska legislature adopted some of the revisions to the UPC's elective share law, while specifically rejecting others. The legislature followed the revised UPC by including within the augmented estate certain non-probate assets, such as life insurance payable to third parties, as well as the spouse's property owned at the decedent's death regardless of whether the property was derived from the decedent. On the other hand, the legislature rejected the UPC's accrual theory of election, which would have entitled a surviving spouse to receive up to half of the augmented estate depending on the length of the marriage, and instead kept the elective share amount fixed for all spouses at one-third of the augmented estate. It thus rema
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