Intestacy

Question 1

Under the UPC, what percentage of the estate does the surviving spouse (SS) take if the decedent’s only surviving relatives are the couple’s children/descendants and the SS has no other descendants? [Spouse + shared descendants]

Answer 1

100%

Question 2

Under the UPC, how much does of the estate does the SS take if there is no descendant of decedent alive at the time of death, but the decedent has a surviving parent? [Spouse + parent]

Answer 2

$300,000 + 75% of the remainder of the estate

Question 3

Under the UPC, how much of the estate does the SS take if the decedent’s only issue are also issue of the SS and the SS has other issue? [Spouse + shared descendants + spouse’s kids]

Answer 3

$225,000 + 50% of the remainder of the estate

Question 4

Under the UPC, how much of the estate does the SS take if the decedent has issue unrelated to the SS? [Spouse + non-spousal kids]

Answer 4

$150,000 + 50%

Question 5

Under the UPC, how much of the estate does the SS take if the decedent has no descendants or parents? [Just spouse]

Answer 5

100%

Question 6

In a community property state, how much of the community property will the SS take?

Answer 6

100%

Question 7

Define “surviving spouse” for purposes of intestacy (CL and UPC)

Answer 7

CL: SS must be legally married to decedent or be a putative spouse (believed in good faith that the marriage was valid)

UPC: SS must be legally married at time of death + clear and convincing evidence that he/she survived decedent by 120 hours to take by intestacy

Question 8

Define “issue” for purposes of intestacy

Answer 8

Must be a parent-child relationship (including adopted children). Lineal descendants of the testator include children, grandchildren, and great-grandchildren.

Question 9

What is the effect of adoption on inheritance rights between the natural parents and the child?

Answer 9

Generally, adoption cuts off inheritance rights between the natural parents and the child, but not in cases where a stepparent adopts

Question 10

Can a child born out of wedlock inherit from the natural father? (CL and modern trend)

Answer 10

CL: No

Modern Trend: Yes, if (1) the father subsequently married the mother; (2) the father held the child out as his own and either received the child into his home or provided support; (3) Paternity proved by clear and convincing evidence after father’s death; or (4) Paternity was adjudicated during the lifetime by a preponderance of the evidence.

Question 11

What are the 3 methods of calculating intestate share?

Answer 11

Per stirpes, per capita by generation, and per capita with representation

Question 12

If the decedent dies without heirs, what happens to the property in the estate?

Answer 12

It escheats to the state

Question 13

How does intestate property pass under the per stirpes approach?

Answer 13

Divide shares equally according to a decedent’s lineal line, regardless of if anyone survived in that generation. If a line has no surviving issue, then that line does not take and the share is divided equally among the rest in that line within that generation.

Question 14

How does intestate share pass under the per capita with representation approach?

Answer 14

Unlike per stirpes, divide property equally at first generation where a member survives the decedent

*Make the first cut at the first level where there is a surviving member

Question 15

How does intestate property pass under per capita at each generation approach (UPC approach)?

Answer 15

Like per capita with representation, divide the property into equal shares at the first generation where there is a surviving member. Unlike per capita with representation, pool the remaining shares equally at each generation.

Question 16

If no SS or issue exist, then how does intestate property pass? (CL and UPC)

Answer 16

CL—To decedent’s ancestors (parents, grandparents, great grandparents) and more remote collateral relatives (siblings, cousins, aunts, etc.)

UPC—In the following order:

1) To decedent’s parents equally (if both survive) or to surviving parent;
2) Descendants of the decedent’s parents;
3) Descendants of grandparents (1/2 to maternal and paternal) of to descendants of grandparents if grandparents are deceased;
4) Decedent’s nearest maternal and paternal relative; and
5) If no surviving relatives, then estate escheats to the state.

Question 17

Does a posthumously born child of a natural father inherit?

Answer 17

If child is born within 280 days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit from the husband. If child is born more than 280 days after death, child will have to prove parentage to inherit.

UPA: Increases rebuttable presumption to 300 days