Chapter 2:Intestacy Continued

Question 1

Requirements to be a “surviving spouse”

Answer 1

Must be legally married (living together insufficient)

A divorced spouse cannot take under intestacy; however if they are separated and a divorce decree has not been entered, they can still take

A spouse who willfully abandoned the decedent cannot take

Question 2

Revised Simultaneous Death Act

Answer 2

Heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours to take by intestacy (this can be altered by a will)

Burden of proff is on the party who whose claim depends upon survivorship.

Question 3

Issue

Answer 3

Lineal descendants ( immediate line; children, grandchildren, great grandchildren)

Does not include: siblings, nieces, nephews or other collateral relatives

A child born during a marriage is presumed to be the marital child of the spouses

In NC a child born w/in 10 months after intestate’s death is presumed to be the issue of the man.

Question 4

Adoption

Answer 4

An adopted child is treated as a biological child

Child can inherit from parents, and parents can inherit from child.

Adoption severs all inheritance rights between the birth parents and the adopted child.

Question 5

Equitable Adoption

Answer 5

If there is no formal adoption, generally stepchildren and foster children have the right to inherit from step/foster parents. Equity treats them as though they were adopted if certain requirements were met:

(1) Express/implied agreement to adopt; (2) reliance on the agreement (3) natural parents gave up custody (4) child lived in the home and acted as the child of the foster parents (4) foster parents took the child in as their own (5) foster parent died intestate.

Governed by clear and convincing standard

Question 6

Half-bloods

Answer 6

NC treats whole-blooded and 1/2 blooded relatives exactly the same.

Question 7

Non-marital children

Answer 7

In NC a non-marital child can inherit from and through a decedent in NC if: (1) decedent was adjudged to be the father of the child by clear and convincing evidence (2) the decedent acknowledged himself to be the father in writing executed and acknowledged before a certifying officer and during the father’s lifetime and the child’s lifetime; (3) Decedent died w/in 1 year of child’s birth and it can be established through DNA testing that decedent was the father; OR (4) Decedent acknowledged the child in his will.

Question 8

Posthumously conceived children

Answer 8

A child born w/in 10 months of decedents death to the surviving spouse is presumed to be the decedent’s issue and inherits intestate as if child born during father’s life.

In NC any child born as a result of reproductive technology is legally the same as a naturally conceived marital child of H + W requesting and consenting the the technology in writing.