Upon the death of any married person not domiciled in Guam who leaves a valid will disposing of real property in Guam which is not the community property of such decedent and the surviving spouse, the surviving spouse has the same right to elect to take a portion of or interest in such property against the will of such decedent as though the property were situated in such decedent's domicile at death. As used in this Section, real property includes leasehold interests in real property. SOURCE: California Probate Code, § 201.6. COMMENT: Section 1103 is new to Guam. An identical provision was added to California law in 1957, at the same time that California added § 201.5 to its Probate Code (equivalent to § 1101, supra.) No decisional law was reported concerning California § 201.6 as of the end of 1979; it may be discerned, however, that the purpose behind the statute is to clarify which jurisdiction's law is to prevail in the specific factual situation with which the statute deals. Under § 1103, the prevailing law will be that of the jurisdiction in which the decedent was domiciled at the time of his or her death; the apparent necessity for this statute arises from the fact that Guam (and California) law provides for no Awidow's election@ as to separate property -- under a community property system, no such election is necessary or appropriate. If prior Guam law were to prevail in the factual situation with which § 1103 deals, therefore, it might be that the surviving spouse would be left with no portion of the deceased spouse's property. Again, this would run contrary to the general principles of the community property system; therefore, for this limited
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purpose, the law of the decedent's domiciliary state is allowed to prevail to avoid such an unfortunate result.