Intestacy

Question 1

Who is entitled to the property of an individual who dies intestate?

Answer 1

If there is only a surviving spouse

1. They get everything.

If there is a surviving spouse AND parent OR child who is also an issue of the surviving spouse

1. Surviving spouse gets $30,000 PLUS 1/2 remaining property.

If there is a surviving spouse AND an unrelated issue

1. Surviving spouse gets 1/2 of the property
2. Remainder goes to issue

If there is no surviving spouse, then it goes in this order

1. Surviving issue
2. Surviving parent(s)
3. Surviving issue of deceased’s parents
4. Surviving grandparents
5. Surviving issue of grandparents
6. Aunts/uncles
7. Issue of aunts/uncles
8. Commonwealth by escheat

Question 2

Who qualifies as a spouse?

Answer 2

1. Legally married partner (even if separated)
2. who has not abandoned/been abandoned for a year or more,
3. provided that there is no pending divorce action in which the grounds for divorce have been established.

OR

1. A party who believes in good faith in the validity of a marriage that is in fact invalid. (Putative spouse)

Question 3

What is required to “survive” a spouse?

Answer 3

Clear and convincing evidence that you survived the decedent, OR ELSE the property of each individual passes as though they had survived the other.

Question 4

What the fuck is an issue?

Answer 4

• All lineal descendants, including children, grandchildren, great-grandchildren, but excluding the descendants of living lineal descendants (so not your living son’s child),
• PROVIDED THAT a parent-child relationship has been established.

Question 5

How do you establish a parent-child relationship?

Answer 5

By showing:

• that the child was born in wedlock
• that the child was conceived before the married father’s death but born after it
• that the child was adopted
• that the child’s foster parents and stepparents
  
  • began the relationship with the child during the child’s minority and continued throughout his life AND
  • would have adopted the child but for a legal barrier (this must be shown by clear and convincing evidence). UNLESS
  • the stepparent had other biological or adopted kids, in which case you MUST be in a will.
• that the child’s foster parent who died intestate
  
  • had made an agreement to adopt with the natural parents AND
  • had treated the child as his own.
• that the child was born out of wedlock but
  
  • the father and mother married after the child’s birth;
  • the father pays for the support of the child or holds the child out as his own; OR
  • paternity is proved by clear and convincing evidence.

Question 6

What are the ramifications of adoption?

Answer 6

1. The child is deemed the issue of the adoptive parents (both for the child’s inheritance purposes and the parents’ inheritance purposes from and through the child).
2. All inheritance rights between the natural parents and the child are curtailed, except when a stepparent who is married to the natural parent of the child adopts the child
3. The inheritance rights between the child and those of his kin are curtailed, unless a familial relationship is maintained between the child and the kin.

Question 7

How do you split up property among issue?

Answer 7

• If the surviving issue are all of equal degree of kinship, then the property passes per capita.
• If they are of unequal degrees of kinship, then the per capita with representation method is used.

Question 8

What is the per capita with representation method?

Answer 8

1. Identify the first generation in which at least one member survives the decedent.
2. Identify whether the deceased members of that generation have then-living issues.
   
   1. If yes, include that deceased member in this calculation.
   2. If no, exclude them.
3. Split up the property evenly among all of the living members of that generation AND all of the non-living members of the generation that have a living issue.

Question 9

What intestacy rights does a stepchild have?

Answer 9

None, if the stepparent has other natural or adopted children.