Intestacy Flashcards
When are Legally married spouses (ceremonial marriage) severed?
Status as a spouse continues until death or divorce/annulment and mere separation does not sever spousal status.
Requirements for common law marriage?
Generally requires (1) cohabitation, (2) each member of the couple holding them out as being married, and (3) having mutual intent to be married.
Status continues in same manner as ceremonial spouses; there is no common law divorce.
Do domestic partners or members of civil unions have the same rights as if they were spouses but are not?
In some states, yes. Not for cohabitants, however.
How do state intestacy statutes deal with the share of surviving spouses?
Nearly all state intestacy statutes start by setting aside a share for the surviving spouse, if there is one. The next statute determines which relatives receive the balance of the property. The final statute provides that the estate will escheat to the state if there are no living heirs.
When is a person a parent’s “child”? Are there distinctions between children for martial/nonmarital? Adopted or genetic? Who is NOT a child?
A person is an individual’s child if there is a parent-child relationship under state family law doctrine. There is no distinction between children based on whether they are marital or not, and adopted children are treated equally with with genetic children.
A step-child, foster child, or grandchild is not a child.
What is The Marital Presumption? Is it rebuttable?
A parent-child relationship is presumed under the Uniform Parentage Act (and most states) if the child is born to parents who are married to each other. The presumption is rebuttable, but that’s often hard and requires genetic testing.
Are posthumously-born (those in utero at the death of a parent) children entitled to inherit?
Yes. Generally, if the child is born within 300 days of the parent’s death, the child is considered to have been in utero at the time of death and is entitled to inherit under common & modern law.
Are posthumously-conceived children entitled to inherit?
It depends. This varies by state (Massachusetts says yes, at least sometimes; Florida says no; most states are silent).
UPC allows such a child to take if the child is in utero within 36 months of the decedent’s death or born within 45 months of the decedent’s death.
May a parent inherit from their deceased child?
Yes. Generally, if there is a parent-child relationship that would allow the child to inherit from the parent, the reverse is also true. If the parental relationship is terminated, there is no longer a parent-child relationship and the parent may not inherit.
When might a parent have their inheritance rights removed or be barred from inheriting?
In some states, parents may have their inheritance rights removed for abuse, neglect, abandonment, or failure to support a child. Additionally, the UPC bars a parent from inheriting based on clear and convincing evidence that the parent’s rights could have been terminated (even if they were not in fact terminated).
What are the 3 Representation models of Intestate Distribution of Descendants? How are they different?
- Strict Per Stirpes (Always make initial division at level of children, whether alive or not.)
- Modern Per Stirpes (Like Strict, but wait for a heartbeat – make the initial division at the first generation where there are survivors.)
- Per Capita at Each Generation (Like modern, but pool and redistribute assets where there are multiple deaths at one generational level.)
- For example, say Pa had 5 kids, 3 survive. Of the two who died, one has 1 child, one has 9 kids. Take the 40% of the estate that didn’t pass to surviving children and give 4% to each grandchild whose parent predeceased him or her.
To what do intestacy rules apply? Is it possible for a decedent to die partially intestate?
Intestacy rules apply to any of decedent’s probate property that does not pass by will. Thus, a decedent may die intestate or partially intestate.
What qualifies as a surviving “spouse” (and, thus, preferred in the distribution of the the decedent’s intestate estate)?
- a person who has undergone a ceremonial marriage to the decedent
- common law marriage
- putative spouse
What is a putative spouse?
A person who cohabited with the decedent in good faith but with the mistaken belief that he or she was married to the decedent.
What is an advancement?
An advancement is an inter vivos gift to an heir that goes against the heirs share of the estate.
