Intestacy Flashcards
Under the Uniform Probate Code (UPC) does a surviving spouse take the entire estate?
Yes, if all decedent’s descendants are also descendants of the surviving spouse.
If all decedent’s descendants are not also descendants of the surviving spouse, how is the decedent’s estate allocated?
Only a Surviving parent of Decedent: Surviving spouse (SS) takes 300,000 and 75% of the remainder estate
All of Decedent’s issues are SS’s issues and SS has no other issues: SS takes 225,000 and 50% of remainder estate
Decedent has issue not related to SS: SS takes 150,000 and 50% of the remainder of the estate
What is community property (CP)?
All property acquired during the marriage that is not gifted, inherited, or devised to only one spouse.
T/F Community property is jointly owned by both spouses?
True
How is Community Property divided intestate?
divided equally (50/50). So intestate, SS owns 50% of community property outright, then 50% of Decedent’s CP is given to SS, and D’s separate property is then distributed pursuant to the general intestacy scheme.
What is the marriage requirement for a surviving spouse (SS)?
The spouses needed to be legally married
Define Putative Spouse
qualifies as marriage requirement if the spouse believes in good faith in the validity of an invalid marriage
When are spouses separated?
Spouses are separated at the issuance of a final dissolution decree
What is the survival requirement?
A SS or other heir must survive the Decedent to inherit or take under a will
Define Common Law Survival Requirement?
Must have survived D for any length of time
Define the Uniform Simultaneous Death Act (USDA) Survival Requirement
120-hour rule: must have survived D by 120 hours
Note: If there is insufficient evidence of order of death - the property of each individual passes as though the other individual predeceased him
How do you determine death under the Common Law versus the Modern Standard
Common law - irreversible cessation of circulatory and respiratory functions
Modern Standard - Brain death (No established criteria)
Who has the burden of proof in for survival requirements? and what is the Common law vs USDA burdens?
The party whose claim depends on survivorship has the burden of proof
Common Law - preponderance of the evidence
USDA - clear and convincing evidence
Define Issue(s) for Intestate succession?
all lineal descendants, including children, grandchildren, great-grandchildren, etc.
Is there a presumption that a child of married parents is the child of those parents?
Yes, presumed to be the natural child of the parties to the marriage.
A child born after the death of the father (posthumously-born) has what kind of presumption?
Rebuttable presumption, if the child was born within 280 days of the Father’s death
When a will references to “child”, does that include adopted children?
Yes, treated like biological child for inheritance purposes
Exception for stepparents
What is the step parent exception to the Adopted-child rule?
an adoption by a stepparent establishes a parent-child relationship between the stepparent and the child (with full inheritance rights) but does not curtail the parent-child relationship if the genetic parent who is married to the stepparent nor the right of the adoptee (or a descendant of the adoptee) to inherit from or through the other genetic parent
**Basically, just because the stepparent adopts the child, does not mean that child can’t inherit from both genetic parents too and the genetic parent married to the stepparent can still inherit under the will of the stepparent
Does a child to a foster parents or stepparents generally have inheritance rights?
Nope, unless through equitable adoption
What is equitable adoption?
A relationship started during the child’s minority and established by clear and convincing evidence that a legal barrier prevented adoption
OR
A foster parent agreed with the genetic parents to adopt the child and the foster parent treated the child as his own
Can an equitable parent inherit through a child?
NO.
Are the inheritance rights between the child and the genetic parents affected by an equitable adoption?
NO.
When can a child born our of wedlock inherit from the natural father under the modern trend?
The child cannot inherit from the natural father unless:
- The father subsequently married the natural mother
- The father held the child out as his own and lived with the child or provided support
- paternity is proven by clear and convincing evidence after the father’s death
OR
- Paternity is adjudicated during the father’s lifetime by a preponderance of the evidence
When can a child born our of wedlock inherit from the natural father under the Uniform Parentage Act (UPA)?
The UPA requires proof of paternity for a child to inherit:
- When the father holds a child out as his own - presumption of paternity, the child can bring an action to establish paternity at any time
- Otherwise, no presumption and the child must bring an action to establish paternity within 3 years of reaching the age of majority
Calculating Shares: Per Capita with Representation - How are interest divided?
Divided equally among the first generation with one surviving member.
the share of a non-living member of that generation passes to the living issue of that member
the non-living member with no living issue has no property allocated
Calculating Share: Per Stirpes
issue equally share the portion that the deceased ancestor would have taken if living
the estate is divided into the total number of children of the ancestor who survive or leave issue who survive
Calculating Share: Per Capita at each Generation
Property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue
Define Negative Inheritance
to disinherit an heir through properly executed will
When is the ancestors and remote collateral rule applied?
When there is no SS or descendants
What are the three Ancestors or Remote Collateral approaches?
1) Parentelic (UPC)
2) Degree-of-relationship approach
3) Combined approach
Define Parentelic (UPC) approach
follows collateral lines until a live taker is found, Decedent’s property is distributed within the taker’s parentelic line as follows:
- D’s parents equally if both survive or all to surviving parent
- Then to Descendants of one of D’s parents (sibling)
- Then to descendants of D’s deceased grandparents (aunt or uncle - niece/nephew)
- Then to nearest maternal/paternal relative
- Finally, D’s estate escheats to state
Define Degree-of-Relationship approach?
calculated by counting the number of relatives between the living taker and the D using the closest common ancestor
Define the Combined Approach
those in a closer collateral line take to the exclusion of those in a more remote collateral line
