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A man dies testate, leaving a wife and minor son. He leaves all of his property to his son. His wife claims her elective share under the Uniform Probate Code. How will the man’s property be distributed?

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Question & Answer

Review the question and all answer choices

A

All to the wife

The wife would not receive all of the property because the husband validly exercised his testamentary power over his separate property by leaving it to his son, and California law does not give a surviving spouse the right to override a will and claim all separate property simply by asserting a spousal claim.

B

All to the son

Correct Answer
C

Part to the wife and part to the son

A split distribution between wife and son would be the result under the Uniform Probate Code's elective share system, which allows a surviving spouse to claim a portion of the deceased's estate regardless of the will — but California has not adopted the UPC elective share, so this outcome does not apply in California.

D

None to the wife

While 'none to the wife' might seem correct if one assumes the husband's will controls everything, this answer is incomplete because it does not account for the wife's pre-existing community property rights — if any of the property was community property, she already owns half by operation of law and the will cannot divest her of it.

Why is this correct?

Answer B (all to the son) is correct specifically in the California context because California does not recognize the Uniform Probate Code's elective share — California's community property system already protects the surviving spouse's interest without needing an elective share remedy. If the property at issue was the husband's separate property, he could validly leave it entirely to his son under California Probate Code, and the wife would have no elective share claim because California has not adopted that UPC provision. This question tests whether students recognize that California's community property framework replaces the need for an elective share, and that a testator has full testamentary freedom over their separate property.

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