State Codes and Statutes
Statutes > Utah > Title-75 > Chapter-02 > 75-2-21275-2-212. Right of election personal to surviving spouse -- Incapacitated survivingspouse -- Custodial trust.
(1) The right of election may be exercised only by a surviving spouse who is living whenthe petition for the elective share is filed in the court under Subsection 75-2-211(1). If theelection is not exercised by the surviving spouse personally, it may be exercised on the survivingspouse's behalf by his conservator, guardian, or agent under the authority of a power of attorney.
(2) If the election is exercised on behalf of a surviving spouse who is an incapacitatedperson, the court shall set aside that portion of the elective-share and supplemental elective-shareamounts due from the decedent's probate estate and recipients of the decedent's nonprobatetransfers to others under Subsections 75-2-209(2) and (3) and shall appoint a trustee to administerthat property for the support of the surviving spouse. For the purposes of this subsection, anelection on behalf of a surviving spouse by an agent under a durable power of attorney ispresumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee shalladminister the trust in accordance with the following terms and such additional terms as the courtdetermines appropriate:
(a) Expenditures of income and principal may be made in the manner, when, and to theextent that the trustee determines suitable and proper for the surviving spouse's support, withoutcourt order but with regard to other support, income, and property of the surviving spouseexclusive of benefits of medical or other forms of assistance from any state or federal governmentor governmental agency for which the surviving spouse shall qualify on the basis of need.
(b) During the surviving spouse's incapacity, neither the surviving spouse nor anyoneacting on behalf of the surviving spouse has a power to terminate the trust; but if the survivingspouse regains capacity, the surviving spouse then acquires the power to terminate the trust andacquire full ownership of the trust property free of trust, by delivering to the trustee a writingsigned by the surviving spouse declaring the termination.
(c) Upon the surviving spouse's death, the trustee shall transfer the unexpended trustproperty in the following order:
(i) under the residuary clause, if any, of the will of the predeceased spouse against whomthe elective share was taken, as if that predeceased spouse died immediately after the survivingspouse; or
(ii) to the predeceased spouse's heirs under Section 75-2-711.
Enacted by Chapter 39, 1998 General Session
