LAW OFFICE OF SAMUEL K.L. SUEN, LLLC
  • Home
  • Attorney Profile
  • Estate Planning
  • Probate
  • Conservatorship
  • Guardianship
  • Trust Administration
  • Blog
  • Testimonials
  • Contact

Hawaii Probate:  Overview of Elective Share in Hawaii

11/13/2013

 
     In Hawaii, under the Uniform Probate Code, a surviving spouse has a right of election against the decedent spouse's estate.  This will be explained in greater detail below, but for historical background, we will briefly discuss the related concepts of Dower and Curtesy.
     Up until 1977, a surviving spouse was given an automatic life estate equal to 1/3 interest in any real property owned by the decedent spouse.  For men, this was known as Curtesy and for women it was referred to as Dower.  Dower affected the husband's real property in that he could not convey his interest in real property without his wife signing off.  The wife, on the other hand, could convey her real property without needing her husband's signature.
     Dower and Curtesy was replaced in 1977 by the Hawaii Uniform Probate Code.  Under the UPC, the surviving spouse has the right to take an "elective share" of the augmented estate, which consists of both the decedent spouse and surviving spouse's estates.  The amount of the "elective share" is determined by the length of the marriage and is set out under Hawaii Revised Statutes Section 560:2-202.
     Generally speaking, the augmented estate consists of the following:
  1. Decedent’s probate estate;
  2. Value of the surviving spouse’s assets at decedent’s date of death, plus any property that would have been in the surviving spouse’s nonprobate transfers to others under Hawaii Revised Statute Section 560:2-205, had the surviving spouse been the decedent; and
  3. Decedent’s nonprobate transfers to others, including
                 a.   Property owned in substance by the decedent (i.e. joint tenancy, revocable trust, etc.)
                 b.   Property in which the decedent retained the right to possession or enjoyment during his 

                       lifetime (i.e. life estates, retained income interest, etc; or
                 c.    Property over which the decedent retained a general power of appointment.

     The surviving spouse's elective share is in addition to the homestead allowance, exempt property and family allowance, as were discussed in a previous post.  

    Author

    Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.

    Archives

    January 2017
    February 2015
    January 2015
    December 2014
    August 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    November 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    May 2012
    April 2012
    March 2012
    February 2012
    January 2012

    Categories

    All
    Abuse
    Advance Health Care Directive
    Conservatorship
    Divorce
    End Of Life
    Estate Planning
    Family Law
    Financial Planning
    Guardianship
    Intestate Succession
    Power Of Attorney
    Probate
    Probate Administration
    Real Property
    Retirement
    Tax
    Trust Administration
    Trustee
    Trusts
    Will

    RSS Feed

    DISCLAIMER:  All content and information is provided by The Law Office of Samuel K.L. Suen, LLLC and is for general informational and discussion purposes only and does not constitute legal advice.  Transmission of this information is not intended to create, and receipt does not constitute, a formation of an attorney-client relationship.    The information presented at this site is believed to be accurate when made, but may not be complete, is not updated, reviewed or revised on a regular basis.  No representations or warranties whatsoever, express or implied, are given as to the accuracy, applicability or validity of the information contained herein.  The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.  You should not act or rely on this information without consulting with a licensed attorney.
    To ensure compliance with requirements imposed by the IRS, please note that any U.S. federal tax advice contained herein is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter that is contained herein.
    Copyright © 2020 Law Office of Samuel K.L. Suen, A Limited Liability Law Company. All Rights Reserved.
Powered by Create your own unique website with customizable templates.
  • Home
  • Attorney Profile
  • Estate Planning
  • Probate
  • Conservatorship
  • Guardianship
  • Trust Administration
  • Blog
  • Testimonials
  • Contact