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