Kenneth Carroll: Utah Probate Code 75-2-206

Excluding property passing to the surviving spouse under the federal Social Security system, any death benefits paid to the surviving spouse under any state workers’ compensation law, and property excluded under Section 75-2-208, the value of the augmented estate includes the value of the decedent’s non-probate transfers to the decedent’s surviving spouse, which consist of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:

• the decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant;

• the decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner; and

• all other property that would have been included in the augmented estate under Subsection 75-2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

Surviving Spouse Rights Utah

Utah provides surviving spouses with guaranteed widow’s rights and entitlements to the deceased’s estate, including:
• Intestate Share
• Spousal Allowance
• Homestead Allowance
• Exempt Property
• Elective Share

Surviving Spouse Rights in Utah When There Is No Will?

When a decedent dies without a will, they have died intestate. In an intestate estate, Utah law governs the distribution of decedent’s assets, including the widow’s share. The surviving spouse in Utah receives the entire estate if there are no living descendants, or all of the living descendants of the deceased are also descendants of the surviving spouse. If the deceased has living descendants who are not also descendants of the surviving spouse, the surviving spouse is entitled to $75,000, plus one-half of the balance of the estate. Any money or property that the surviving spouse receives outside of probate, for example jointly titled accounts, are added to the probate estate in determining its total value, and the property received by the surviving spouse outside of probate are treated as partially satisfying the one-half of the probate estate that the spouse is entitled to receive.

Spousal Allowance and Exempt Property

The surviving spouse in Utah is entitled to: (a) homestead allowance of $22,500, (b) exempt property not exceeding $15,000 in value, household furnishings, automobiles, and personal effects.The surviving spouse in Utah is also entitled to a reasonable maintenance allowance during the period of administration, for up to one year if the estate is insolvent. All allowances are chargeable against elective share.

Utah Elective Share

In Utah, a surviving spouse has a right to a share of the deceased spouse’s estate unless the surviving spouse has specifically waived that right. Absent a waiver, one spouse or his or her children cannot stop the surviving spouse from receiving this share. If both spouses’ children are mutual to each other (meaning the deceased spouse has no children from a prior marriage or relationship) the surviving spouse receives the entire deceased spouse’s estate.If both spouses’ children are not mutual to each other (meaning they have a blended family and at least one of the deceased spouse’s children is not also the surviving spouse’s child) the surviving spouse receives a certain percentage of the deceased spouse’s estate. This percentage is an augmented share based on a calculation involving a somewhat complex formula including a homestead, family allowance, and exempt property as factors. It is intended, depending on the size of the estate, that the surviving spouse will receive up to $75,000.00 and then a percentage of the remaining estate and the deceased person’s children will receive the other percentage.A probate will likely need to be filed to formally determine the decedent’s heirs and the amount of the elective share. As noted, the calculation for how much a surviving spouse will receive is somewhat complicated and depends on the size and type of property in the estate. It is best to have an experienced attorney discuss these matters with you in detail and help determine the amount of the elective share.

A surviving spouse in Utah may take an elective share amount equal to the value of either;

• 1/3 of the augmented estate or,
• a supplemental elective share amount equal to $75,000 less amounts passing from the augmented estate to the spouse outside of probate and the homestead, exempt property, and family allowances.

Property Subject to Elective Share

The elective estate includes the sum of the value of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute;

• decedent’s “net probate estate”;
• decedent’s non-probate transfers to others and to spouse,
• spouse’s property and non-probate transfers to others.
The Net Probate Estate is the decedent’s probate estate reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable creditor claims against the estate.

Satisfaction of Elective Share

Satisfaction of the elective share is done in layers. Each layer is exhausted before moving to the next layer. The layers are listed by the order in which the elective share is satisfied. Amounts included in the estate passing to spouse by testate or intestate succession and non-probate transfers to spouse

• spouse’s property and non-probate transfers to others included in the augmented estate

• decedent’s separate property passing to spouse at death

• spouse’s homestead allowance, exempt property, and family allowance

• the probate estate and non-probate transfers to others Liability is equitably apportioned among recipients of probate estate and non-probate transfers. If the foregoing is insufficient, balance is paid from remaining portion of decedent’s non-probate transfers, and equitably apportioned among the recipients.

Deadline for Election

The surviving spouse must make the elective share election within nine months after the date of decedent’s death, or within six months after the probate of decedent’s will, whichever occurs later. If an elective share petition is filed later than nine months after death, decedent’s non-probate transfers to others are excluded from the elective estate. The court may extend the deadline for making the elective share election upon the spouse’s petition for additional time and for good cause; if court award’s spouse additional time to elect, decedent’s non-probate transfers to others is included in the elective share estate.

How is the Elective Share Election Made in Utah?

The petition for elective share must be filed in the court and mailed or delivered to the personal representative, if any. The elective share petition must be filed during the surviving spouse’s lifetime by the spouse, personally, or by spouse’s conservator, guardian, or attorney-in-fact. If the elective share election is exercised on behalf of incapacitated spouse, elective share is set aside in trust for the spouse’s benefit.

Spouses in Utah Inheritance Law

If you die intestate in Utah, which is an equitable distribution state, and leave a surviving spouse, your spouse’s inheritance depends on whether or not you have living descendants. Descendants can be children, grandchildren, or great-grandchildren. Your spouse will inherit all of your intestate property if you die without descendants, or if all surviving descendants are from you and your surviving spouse. If you have a spouse and no descendants, your spouse will inherit everything. In Utah, a surviving spouse has a right to a share of the deceased spouse’s estate unless the surviving spouse has specifically waived that right. Absent a waiver, one spouse or his or her children cannot stop the surviving spouse from receiving this share. If both spouses’ children are mutual to each other (meaning the deceased spouse has no children from a prior marriage or relationship) the surviving spouse receives the entire deceased spouse’s estate. If both spouses’ children are not mutual to each other (meaning they have a blended family and at least one of the deceased spouse’s children is not also the surviving spouse’s child) the surviving spouse receives a certain percentage of the deceased spouse’s estate.

This percentage is an augmented share based on a calculation involving a somewhat complex formula including a homestead, family allowance, and exempt property as factors.It is intended, depending on the size of the estate, that the surviving spouse will receive up to $75,000.00 and then a percentage of the remaining estate and the deceased person’s children will receive the other percentage. A probate will likely need to be filed to formally determine the decedent’s heirs and the amount of the elective share. As noted, the calculation for how much a surviving spouse will receive is somewhat complicated and depends on the size and type of property in the estate. Probate and Second There is a truism in the realm of probate and estate planning that where you fail to plan, the State will plan for you. The law offers everyone the opportunity to dictate how their property and assets will be administered at their death. These options range from simple to complex, from a basic will to a detailed trust or family limited partnership. Regardless of what option you choose, the best advice is to do something rather than nothing, because doing nothing only ensures that you have no say in how your estate is administered and distributed. Doing nothing means your estate will be distributed as dictated by the legislature and the courts. For traditional families (i.e., husband, wife and children), a typical estate plan usually mirrors the distribution scheme provided for by the Utah Probate Code.Specifically, the estate passes to the surviving spouse, and then to the children. Many families do not fit the traditional mold, even if they start out that way. Much probate litigation occurs in the context of non-traditional, blended families and stepchildren.

We all hope that our families will be able to handle our passing, get along, and work together, but experience shows that the lack of an estate plan often results in people looking out for their own interests rather than honoring the deceased’s wishes.Two commonly misunderstood issues in probate litigation involve either the “spousal elective share” or the “spousal intestate share.” The spousal elective share allows a surviving spouse to receive a specified amount from the estate even though he or she was omitted from the will or was intentionally disinherited. The exact amount is the subject of a complex calculation, but, generally, it is one third of the augmented estate with a minimum of $75,000. Similarly, the spousal intestate share provides that where you are survived by your spouse as well as children who are not descendants of your spouse (e.g., your spouse’s stepchildren, including your own children from a prior marriage) the surviving spouse is entitled to the first $75,000 from the estate as well as one half of the remaining property of the estate. Disputes often arise in connection with estates that are valued at less than a hundred thousand dollars, which may leave much less for your children than you intended, or might result in more going to someone you might have intended get little or nothing. In addition to these special spousal provisions, the law also dictates to whom property will pass in the event you die without a will. Generally, property passes in the following order:

• spouse;
• descendants;
• parents;
• siblings;
• grandparents;
• aunts/uncles;
• Cousins.

A Utah decedent has the ability to dispose of all property that is titled in his or her name at the time of death. Utah is not a community property state. Utah does draw a distinction between marital property and separate property, but the distinction is relevant only for divorce. The distinction is not relevant for determining what property the decedent may dispose of at death. The one exception to this rule is that the distinction between marital and separate property is used in calculating the surviving spouse’s elective share. Real estate held by a married couple “as husband and wife” is deemed to be held in joint tenancy with right of survivorship.

Real estate held by a married couple without such a designation is deemed to be held as tenants in common. If the decedent is survived by a spouse, and if all of the decedent’s descendants are also the surviving spouse’s descendants, the surviving spouse is entitled to all of the property that passes under the rules of intestacy. If the decedent is survived by a spouse, and if the decedent is survived by one or more descendants who are not the surviving spouse’s descendants, the surviving spouse is entitled to $75,000 plus one-half of the balance of the intestate property. Adjustments are made for non-probate transfers to the surviving spouse. Property not passing to a surviving spouse is distributed to the decedent’s descendants per capita at each generation. If the decedent is not survived by either a surviving spouse or any descendants, the intestate property passes to the decedent’s parents. If neither of the decedent’s parents survives the decedent, the intestate property passes to the descendants of the decedent’s parents per capita at each generation.If the decedent is not survived by any parents or descendants of parents, one-half of the intestate property passes to the decedent’s maternal grandparents or to their descendants per capita at each generation, and one-half passes to the decedent’s paternal grandparents or to their descendants per capita at each generation. If the decedent is survived by none of the foregoing persons, the property passes to descendants of the decedent’s predeceased spouse. Adjustments are made for non-probate transfers to such heirs.