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Loren, Attorney
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Experience:  30 years experience representing clients.
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Can a military pension and military disability pay be used

Customer Question

Can a military pension and military disability pay be used to reduce the surviving spouse's elective share (military retiree) of his decedent wife's augmented estate, where much of the decedent wife's property have been given to others?
Submitted: 3 years ago.
Category: Legal
Expert:  Loren replied 3 years ago.
Thank you for using JustAnswer. I am JudgeLaw and I will do whatever I can to answer your question and provide excellent service.

Before we begin, a bit more detail would be helpful please.

Which state?

Thank you.

Customer: replied 3 years ago.


Expert:  Loren replied 3 years ago.
I am sorry to hear of your dilemma. I realize how frustrating this is for you, but I believe I have information which you will find helpful.

Hawaii's Revised Uniform Probate Code says that a surviving spouse has the right to elect (choose) from the "augmented estate" of the deceased spouse. The maximum amount of the election is a percentage of the augmented estate. The percentage for a marriage of 15 years or more is 50 percent, with lesser percentage for shorter marriages.

The augmented estate includes property in the decedent's probate estate, property in decedent's revocable trust, life insurance proceeds of a policy owned by decedent, property passing to the surviving spouse, the decedent's fractional interest in joint property not passing to the surviving spouse, property given away within two years of death (with some exceptions). If the elective share is more than what the surviving spouse is otherwise receiving, the spouse can make the election. The electing spouse is entitled to recover against property included in the augmented estate.

The elective share rights are also preserved for spouses who are disabled. In that case, a legal guardian, would exercise the rights.

The Hawaii statute defining an augmented estate is fairly inclusive. Therefore, it would seem to include non probate transfers:

"Subject to section 560:2-208, the value of the augmented estate, to the extent provided in sections 560:2-204, 560:2-205, 560:2-206, and 560:2-207, consists of the sum of the values of all property, whether real or personal; movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's non probate transfers to others, the decedent's non probate transfers to the surviving spouse or reciprocal beneficiary, and the surviving spouse's or reciprocal beneficiary's property and non probate transfers to others. [L 1996, c 288, pt of §1; am L 1997, c 383, §19]"

So, while it would not reduce an elective share, it may make the augmented estate a more attractive choice.

It is my privilege to assist you. Let me know if you need further information.  I hope I have helped you beyond your expectations in the service I have provided to you.  I am here for you.

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Thank you.

Customer: replied 3 years ago.

I already know the framework for the composition of the augmented estate, i.e. what properties are included in what sections of the Hawaii probate law. My question has not been answered as it may be a case of first impression not only in Hawaii but perhaps throughout the entire US.


The issue is whether under HRS §560-209, the retired military surviving spouse' s military pension and disability pay will be applied first, if at all, so as to reduce that retired military surviving spouse's entitlement to his elective share. In other words, is the military pension a "public pension" and his disability pay a "disability compensation" under HRS §560:208(b)(2)? In my opinion, I don't believe they are encompassed in those definitions.

Expert:  Loren replied 3 years ago.
Thank you for the clarification.

I have taken a close look at the statute and even plugged it into a case search and it does appear to be something which has not been litigated.

However, I think I would respectfully disagree with your conclusion. I base my conclusion on the language used in 208(b)(2). The fact that they state public pensions and private pensions, without any exception noted, would seem to indicate that the intent was to be all-inclusive. The same with disability compensation. There is nothing excepted in the statute so all disability compensation should be included.

It is an interesting question.

I do not know if I answered it for you, but that is my analysis.

Thank you.

Customer: replied 3 years ago.

As I had surmised, the issue of whether military pensions and military disability pay has not been litigated anywhere in the context of the composition of the augmented estate.


To be fair to you, military "pensions" are treated differently from other "public pensions", and in some cases are not treated as "pensions" per se.

Moreover, there are cases which state the federal pre-emption doctrine trumps state laws when military pensions and disability compensation are involved.

Expert:  Loren replied 3 years ago.
It is possible.

I will opt out since 8 am not sure of the answer and perhaps another Professional would have a more conclusive response.

There is no need to respond as it will delay another Professional from assisting you.

Thank you.


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