Spouse & Child Protections (Elective Share · Pretermitted)
Wills & Succession · Lesson 06
Spouse & Child Protections (Elective Share · Pretermitted)
這一課問的是：在世配偶或被遺漏之子女是否有反遺囑剝奪之保護？
ActorActObjectStandardConsequence
Visual Scene · the picture in your head
Issue. Does the surviving spouse or omitted child have protection against the will's disinheritance?
這一課問的是：在世配偶或被遺漏之子女是否有反遺囑剝奪之保護？
Core Terminology · 7 must-know
Tap a card to flip and reveal the meaning.
elective share
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Surviving spouse's right to take a statutory share against the will.
選擇份額。
augmented estate
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Includes non-probate transfers for elective share calculation.
擴大遺產。
pretermitted spouse
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Spouse married after will; may take intestate share.
遺漏配偶。
pretermitted child
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Child born/adopted after will; may take intestate share.
遺漏子女。
family allowance
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Statutory support for family during probate.
家屬津貼。
homestead
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Protection for family residence.
家屋。
exempt property
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Personal property exempt from creditors.
免徵財產。
Issue · what this lesson is really about
Does the surviving spouse or omitted child have protection against the will's disinheritance?
這一課問的是：在世配偶或被遺漏之子女是否有反遺囑剝奪之保護？
Trigger words & phrases that should flag this issue:
disinheritedelective sharespousepretermittedomitted
Expression Bank · how lawyers actually say it
Six function → sentence patterns. Use these in essay applications.
| Function | English sentence | 中文 |
|---|---|---|
| Apply elective share | Surviving spouse may elect a statutory percentage of augmented estate against the will. | 在世配偶可選擔擴大遺產之法定百分比。 |
| Apply pretermitted spouse | Spouse married after will may take intestate share absent contrary will language or alternative provision. | 婚後立遺囑前之配偶可獲法定份額。 |
| Apply pretermitted child | Child born after will may take intestate share if accidentally omitted. | 遺囑後出生子女若疏漏可獲法定份。 |
Rule Sentence · the workhorse
Most states protect a surviving spouse through the elective share — a statutory right to take a defined percentage of the augmented estate against the will — and protect pretermitted spouses and children (those married after or born after the will) by giving them an intestate share.
Sentence Anatomy · 5 roles, 5 colors
Every rule sentence breaks into five visual roles.
Actor 行為人surviving spouse / pretermitted child在世配偶 / 遺漏子女
Act 行為electing share or claiming選擇份額或主張
Object 對象testator's estate立遺囑人遺產
Standard 法律標準statutory entitlement法定權利
Consequence 後果protective share保護份額
Casebook Snapshot · a real American case
In re Estate of Cross
Holding. An incompetent surviving spouse's right to elect against the will may be exercised by a guardian if doing so serves the spouse's best interests; the elective share is a substantive right that cannot be waived without authorization.
Why it matters. Cross protects vulnerable spouses: guardians may elect even for incompetent surviving spouses.
Cross：監護人可為失能配偶行使選擇份額。
Common Mistakes · what trips students
✗ elective share 等於 intestate share。
✓ Elective share is statutory %, often 1/3 or 1/2.
選擇份額為法定 %，常為 1/3 或 1/2。
✗ disinheritance of spouse 一直允許。
✓ Elective share defeats total disinheritance.
選擇份額擊敗完全剝奪。
Mini IRAC · build the Application
Issue. May the surviving spouse, S, claim an elective share when T's will leaves the entire $1M estate to T's children from a prior marriage?
Rule. Under most state statutes, a surviving spouse may elect a statutory share of the augmented estate (typically 1/3 to 1/2) against the will.
Application (model). T's will disinherits S entirely in favor of T's children from a prior marriage. Because elective-share statutes prevent a surviving spouse from being completely disinherited and entitle her to a statutory share, the fact that S is the surviving spouse and the will leaves nothing to her means S may elect against the will and take her statutory share.
Pick the right element for each blank:
g1.
g2.
g3.
Conclusion. Therefore, S may elect against the will and receive her statutory share (typically 1/3 of $1M = $333,333).
MBE Check · multiple choice
T executed a will in 2018 leaving everything to her daughter. In 2022 T had another child, C2. T never updated the will. T dies. Does C2 take anything?
Practice Drill · tap to build the rule
Drop the chips here in correct order:
Tap chips to add → tap chips in the target to remove: