Intestacy Flashcards
When does the rule of distribution of property in intestacy typically apply?
1) Where the decedent left no rule or did not properly execute it;
2) Where the will does not make a complete distribution of the estate (normally due to poor drafting by the attorney resulting in partial intestacy); and
3) Where a distributee successfully challenges the will and the will is denied probate
What is the distribution if the decedent is survived by spouse and no children?
If the decedent is survived by her spouse but not any children or issues of children the spouse takes the whole estate.
What is the distribution if the decedent is survived by spouse and children?
If the decedent is survived by his spouse and issue, whether of his current marriage or an earlier marriage, the surviving spouse takes 50k and 1/2 the residuary and the issue take stye leftover residuary UNLESS the estate happens to be less than $50,000 then the whole estate goes to surviving spouse.
What is the distribution if the decedent is survived by children only?
If decedent is survived by children only (an no child has predeceased the decedent) it goes to the children in equal shares.
What is the distribution if the decedent is survived by children and issue of predeceased children?
If the decedent is survived by children and issue of predeceased children then it passes to alive children and the issue of dead children by representation per capita at each generation.
How is property divided where there are children and issues of predeceased children?
Each issue in the same generation will always have equal shares.
What if the decedent is not survived by spouse or issue?
The distribution is to all parents or surviving parent if not survived by parents, all to issues of parents who take per capita at each generation.
What are the inheritance rights of an adopted child?
Them and their issues generally have full inheritance rights from family.
What are the adopted child’s inheritance rights to their birth parents?
They do not have any from birth parents and birth family EXCEPT where a child is adopted by the spouse of a birth parent.
What about the inheritance rights of a child adopted by a relative?
If the adopted child is related to the decedent by birth and an adopted relationship, the child inherits under the birth relationship UNLESS the decedent was the adopting parent, and then the child inherits under the adoptive relationship.
What’s the story with non marital children’s inheritance rights?
They have full inheritance rights from MOM and MOM’s family. Only inherit from birth father if paternity is established by one of the four tests.
What are the four paternity tests?
1) Marry the mother after the child’s birth.
2) Order for filiation.
3) Files an affidavit of paternity.
4) Clear and convincing evidence being DNA test or openly or notoriously acknowledging child as his own.
What circumstances disqualify spouse from taking intestate share?
THE DISMAL TEST
What is the DISMAL TEST?
1) DIVORCE: final decree or annulment.
2) INVALID DIVORCE: Not disqualified if deceased spouse procured it.
3) SEPARATION DECREE: This does not result in disqualification unless there is specific language in the agreement waiving spousal rights. No disqualification if decree of separation rendered against deceased spouse.
4) MARRIAGE VOID
5) ABANDONMENT/LACK OF SUPPORT: Surviving spouse abandoned or refused to support deceased. No disqualified if deceased spouse abandoned or refused to support you.
Can I inherit if I kill my spouse?
No, a constructive trust is created.
