Intestacy Flashcards
What does a spouse get if the decedent had no children?
Everything
What does a spouse get if the decedent had children, but all with the surviving spouse?
Everything
What does a spouse get if the decedent had no children, but the decedent’s parents are alive? Do the parents get anything; if so, what?
Spouse gets the first $300,000 and 3/4 of anything above the $300,000; spouse will also get the house owned by decedent and spouse together (it will pass outside of probate). The parents of the decedent get 1/4 of anything above the $300,000 (if the surviving parents are divorced, they split the 1/4)
What does a spouse get if the surviving spouse had children from another marriage but the decedent did not?
Spouse gets the first $225,000 and 1/2 of anything above the $225,000
What does a spouse get when the decedent had children from another marriage?
Spouse gets the first $150,000, plus 1/2 of anything above that $150,000
What happens when the spouses die at the same time? When does this rule not apply?
An individual who is not established by clear and convincing evidence to have survived the other by 120 hours (5 days) is deemed to have predeceased the other; a spouse cannot inherit from the other spouse unless that spouse survived them by 5 days. This rule does not apply if its application would result in a taking of an intestate estate by the state
What happens if a decedent had no spouse and all of his children were alive at the time of his death?
The children split the decedent’s estate equally
What happens if all of the decedent’s children predecease him and he has no spouse?
The decedent’s grandchildren step into the shoes of their parents (the deceased children) and take their shares
What if a child predeceases a decedent and the jurisdiction follows the English Per Stirpes rule?
Each living branch of the family takes the same amount; there is one share for each surviving child and one share for each deceased child with surviving descendants. Each child gets one share and the share of the deceased child is split between the child’s descendants
What if a child predeceases a decedent and the jurisdiction follows the Modern Per Stirpes rule?
Cut the decedent’s estate into shares at the nearest generation with descendants who survive the decedent; if all of the decedent’s children are dead, all of the decedent’s estate is divided evenly between the grandchildren. If one of the decedent’s children is alive, we use English Per Stirpes
What if a child predeceases a decedent and the jurisdiction follows the UPC/Per capita at each generation rule?
Everyone in a like generation gets a like amount; the initial division is made at the first generation with a living descendant - one share is for the living children and one share for the dead children with descendants. Shares of the deceased are put back into a “pot” and split evenly among the younger generation (children of people in the older generation who got money get nothing)
Who do adopted children inherit from in a UPC jurisdiction? Are there exceptions to this rule?
Adopted children inherit from their adopted parents; they cannot adopt from their biological family. Exceptions to this rule include: (1) a child adopted by the spouse of his biological parent; (2) a child adopted by a genetic relative of his biological parent; (3) a child adopted after the death of both of his biological parents
How does the UPC treat adopted adults under intestacy?
The UPC treats adopted adults as natural children, but does not allow adopted adults to benefit from class gifts set up by anyone other than the adopted parent. Further, adopted adults will not inherit if the adult was only adopted to bring him under a preexisting testamentary instrument
Who do nonmarital children inherit from under intestacy?
Nonmarital children can always inherit from their biological mothers, but states may limit the child’s inheritance from the biological father
Can posthumously conceived children inherit from the decedent under intestacy?
Yes, but the decedent must consent to the posthumous reproduction in a record
