4) This concept excluded nonprobate property (sometimes referred to as "will substitutes") from the computation of the surviving spouse's share.
The purpose of this article is to evaluate the court cases attempting to apply traditional elective share statutes to nonprobate property under the "fraud on the spousal share" doctrine.
The application of the analysis will show that the attempts of courts to extend a traditional elective share statute to include nonprobate property wrongly allows courts to introduce public policy factors into areas where the legislative decision deserves primacy.
In Section VII, some very recent cases will be discussed that may represent an emerging trend to limit elective share statutes application to nonprobate property to the statute's terms.
Lastly, the article will conclude that the court should not attempt to expand traditional elective share statutes to nonprobate property because to do so takes the court beyond the permissible judicial function of courts.
This article excludes augmented estate statutes that apply to nonprobate property by the terms of the statute.
Extending the statute to nonprobate property is not the function of the court.
In fact, such statutes reflect the primary argument of this article that it is the function of statutes, not courts, to determine which, if any, nonprobate property is included in the elective share.
As Reporter (Waggoner) and Associate Reporter (Langbein) for the recently-published Restatement of the Law Third, Property (Wills and Other Donative Transfers), the professors examined the traditional doctrines relating to nonprobate property
and transfers by will and intestacy as well as modernized formulations of the laws relating to class gifts, powers of appointment, future interests and perpetuities.
A fundamental ownership concept is the difference between probate and nonprobate property.
The disposition of probate property is subject to a will; the disposition of nonprobate property is controlled by some other legal document.
If the property is nonprobate property, related income and deductions are reported on the owner's return.