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January 2014 Archives

Bankruptcy

As it relates to individuals considering bankruptcy the two most frequently used types of bankruptcy are Chapter 7 and Chapter 13. Chapter 7 provides for the liquidation of assets to satisfy debts owed. All nonexempt assets are gathered by a trustee and sold to pay off debts. Certain assets may be exempted from liquidation depending on federal or state laws. The individual filing for Chapter 7 bankruptcy will need to include a schedule of exempt property with their bankruptcy petition. Most Chapter 7 bankruptcies involve a situation where all the property of the individual is exempt or there are no assets. In that scenario, the trustee makes a report to the court that there are "no assets" for liquidation and no distribution is made to creditors. 

Elective Share

It is possible for a spouse intentionally left out of the other spouse's will to still receive a share of the estate in the event of death. Pennsylvania law provides for an "elective share" pursuant to 20 Pa. C.S. 2203(a). This law provides that if a person is still married at the time of their death with no divorce pending, the surviving spouse can elect to receive 1/3 of that person's estate. There are items that are excluded from the estate in instances where an elective share will be applied. 2203(b) states the following exceptions: (1) any conveyance made with the express consent or joinder of the surviving spouse; (2) the proceeds of insurance, including accidental death benefits, on the life of the decedent; (3) interests under any broad-based nondiscriminatory pension, profit sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer for benefit of its employees and their beneficiaries; (4) property passing by the decedent's exercise or nonexercise of any power of appointment given by someone other than the decedent. 

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