1. Intestacy Flashcards
Marital Rights – Who owns the property before death?
Law of the domicile at the time the property is acquired; rights to not change as the couple moves from one state to another.
Which state’s intestacy law applies to personal property?
The law of the intestate’s domicile at death.
Which state’s intestacy law applies to real property?
The law of the situs of the property (where located)
If the intestate is survived by a spouse and has no descendants, the surviving spouse takes:
Everything
If the intestate is survived by a spouse and descendants:
Surviving spouse takes the first $50,000 and one half of what’s left.
The descendants take the other have of the residual.
If the decedent is survived only by children (that is, no surviving spouse and no descendants of a predeceased child):
Each surviving child receives an equal share.
If the decedent is survived by children and descendants of a predeceased child:
The estate is divided per capita at each generation.
Per Capita at Each Generation
- Divide the estate into shares creating:
- one share for each surviving descendant in the closest generation to the intestate in which there is a surviving descendant, and
- one share for of each predeceased descendant in that generation who has a surviving descendant. - Each living member of the closest generation to the intestate in which there is a surviving descendant receives one share.
- The shares created on behalf of the deceased members of that generation are combined and then distributed per capita among the younger generation heirs.
What if the decedent is not survived by a spouse or descendants?
All to parents or the surviving parent
What if the decedent is not survived by a spouse, or descendants, or a parent?
All to the parents’ descendants (the intestate’s brothers, sisters, nieces, nephews, etc.)
What if the decedent is not survived by a spouse, or descendants, or a parent, or by a parent’s descendants?
- Half to maternal grandparents OR surviving grandparent OR (if neither is living) to their children and grandchildren (the intestate’s aunts, uncles, cousins, etc.), who take per capita at each generation; and
- Half to paternal grandparents OR surviving grandparent OR to their children and grandchildren (the intestate’s aunts, uncles, cousins, etc.), who take per capita at each generation.
What if the decedent is not survived by a spouse, or descendants, or a parent, or by a parent’s descendants, or by grandparents or their descendants on one side?
All to grandparents OR their children and grandchildren on the other side.
If only survived by great grandchildren of grandparents (the intestate’s first cousins once removed):
- Half to maternal great grandchildren in equal shares; and
2. Half to paternal great grandchildren in equal shares.
If not survived by grandchildren of grandparents
The estate escheats to the state of New York
What are the inheritance rights of an adopted child regarding his adoptive parents?
Adopted child and his descendants inherit from and through the parents by adoption and their kin.
What are the inheritance rights of an adopted child regarding his biological parents?
Adopted child does not inherit from and through the biological parents.
Exception: A child adopted by the spouse of a birth parent (step-parent) does inherit from and through the birth parents.
Inheritance rights of adoptive parents:
Parents by adoption inherit from and though the adopted child.
Inheritance rights of biological parents:
Biological parents do not inherit from the adopted child.
If the adopted child is related to the decedent by both a birth relationship and an adopted relationship, the child inherits:
Under the birth relationship unless the decedent was the adopting parent, then the child inherits under the adoptive relationship.
The inheritance rights of a non-marital child from the mother:
Child takes from and through the mother.
The inheritance rights of a non-marital child from the father:
Child takes from and through the father only if paternity is established by one of the following:
(1) The father marries the mother after the child’s birth,
(2) An order of filiation in a paternity suit is entered adjudicating the man to be the child’s father
(3) The father files a witnessed and acknowledged (before a notary public) affidavit of paternity with the Putative Father Registry, or
(4) Paternity is established by clear and convincing evidence
Two examples of clear and convincing evidence that would establish paternity:
- DNA
- Father openly and notoriously acknowledges the child as his own such as by stating, “This is my child,” or putting his name on the child’s birth certificate.
How do half-blood heirs inherit?
No difference under New York law. Half-blooded heirs receive full shares.
How are disqualified spouses treated?
If the spouse is disqualified, the heirs are determined as if the surviving spouse died before the intestate spouse.
A legal fiction that the surviving spouse did not actually survive.
Under what circumstances will a spouse be treated as disqualified?
- Divorce
- Invalid divorce obtained by surviving spouse
- Separation decree
- Marriage is void (e.g., incestuous or bigamous)
- Abandonment of Lack of support
Does NY have a slayer statute?
No, Thus, the court may impose a constructive trust on the murdering heir to prevent unjust enrichment.
Advancement Definition
Irrevocable gift intended by the donor as prepayment of an inheritance.
What proof is required of an advancement?
- Evidence of the advancement must be in writing (not oral) which is
- Made at the time of the gift, and
- Signed by the donor (advancer) or donee (advancee).
What is the effect of an advancement?
If advancee wants to share in the estate, advancee must account for the advancement
Reasons to Disclaim:
- Burdensome — e.g., afraid of liability if property contains a toxic waste dump.
- Tax — Disclaimed property is not treated as a gift from the disclaimant to the eventual recipient.
- Avoid Creditors except for federal taxes and Medicaid / Medicare.
Requirements for a disclaimer:
- Written.
- Signed by the disclaimant.
- Acknowledged before a notary.
- Accompanied by a separate affidavit stating that no consideration was received for disclaiming (unless the Surrogate’s Court authorizes receipt of consideration for the disclaimer).
- Filed with the Surrogate’s Court within 9 months from death. (Thus, time could run before you even know you are an heir or beneficiary.)
What effect does acceptance have on one’s ability to disclaim?
It would then be too late to disclaim.
What happens to the property that a person disclaims?
Unless the document provides otherwise, disclaimed property passes as if the person disclaiming had predeceased the decedent.
An heir must outlive the intestate by __________________________ in order to inherit.
120 hours
If there is insufficient clear and convincing evidence that the heir survived by this time period, the heir is treated as if the heir predeceased the intestate.
Are negative will provisions valid?
Yes. Unlike the common law, New York permits a testator to preclude an heir from inheriting when partial intestacy exists.
