intestacy -- posthumous children, hotchpot, advancments and the slayer rule

Question 1

what do we mean by post humous children?

Answer 1

Children conceived during life of father and are alive after father dies

Question 2

how does the uniform parantage act go about presuming that a father is a parent of a child after the father died

Answer 2

. the individual and the woman who gave birth to the child were married to each other and the child is born not later than 300 days after the marriage is terminated by death

Question 3

technically, are post humous children marital children? how does the law remedy this?

Answer 3

They are not a marital child because marriage terminates upon death of the spouse
The law extends the marital presumption out
Via the parentage act

Question 4

if the child is not a martial child, what is the rule for establishing parternity for purposes of ineritance through the father?

Answer 4

varies by state;

Subsequent marriage of parents.
Acknowledgment by father.
Adjudication of paternity during father’s life.
Clear and convincing proof after father’s death.

Question 5

what is the key takeaway from wood ward (the twins posthumously concieved)

Husband is diagnosed with cancer, he decided to put his sperm in a bank

He dies, and years later the wife uses his sperm to conceive twins

The wife applied for social security survivor benefits, but was rejected because she had not established that the twins were the husbands’ ‘children’ as defined by the act

Issue: are the twins heirs for the purpose of intestate succession from their father?

Answer 5

Posthumously conceived children have the right to inherit under Massachusetts intestacy laws if

1. the genetic relationship to the decedent is established and

2.the deceased parent consented to the posthumous conception and posthumous support of the child or children.

Question 6

what are the three state interests discussed in the woodward case (the posthumous twins case)

Answer 6

1.The legislative concern to promote the best interest of the children

2. The states interest in the orderly administration of the estate (ie they want to get it right; Any inheritance rights of posthumously conceived children will reduce the intestate share available to children born before death

3.The reproductive rights of the genetic parent
Ie did he intend for them to be his heirs?

Question 7

under the uniform paratnge act, what are the three requirments that need to be met for post humously concieved children to be heirs to the dead father

Answer 7

1. need to establish the genetic connection
2. need consent in signed writing or established by clear and convincing evidecme
3. time limitation: need to be in utera within 36 months of death or born within 45 months of death

Question 8

under the UPC, what four things do you need for post humorously conceived children to be heirs to the dead father

Answer 8

1, genetic connection
2.need consent in signed writing or established by clear and convincing evidecne
3. notice within four months of death that post humous conception is a possibility
4.time limitation: need to be in utera within 36 months of death or born within 45 months of death

Question 9

how do some courts restrict the type of evidece allowed to show consent of the genetic decdent for the post humous children to take

Answer 9

like CA; only allow consent in a signed and dated wrting, where the UPC and uniform paranage are ok with a showing by clear and convincing evidence

Question 10

in terms of the notice requirment for posthumous children to be heirs, what does the time for notice indcate about what the focus is on

Answer 10

Shorter the window – more focus on efficiency
Longer the window – more focus on rights of genetic freedom

Question 11

what issue does advancement deal with

Answer 11

What happens when a property owner makes a lifetime gift to an heir?
Should lifetime gifts reduce the amount an heir receives in intestacy or is it separate?

Question 12

for adnvanments, what is the presumption under the old rule and the modern rule

Answer 12

Old rule: lifetime gifts are prepayments
Modern rule – lifetime gifts are irrelevant ; presume no advancement

Question 13

how can you rebut the presumption that life tiem gifts are not an advancment? (via upc)

Answer 13

requires a writing that shows it was an advancement

(i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement

(ii) If the decedent’s written document or the heir’s written confirmation shows that the gift should be included in dividing the decedent’s estate, then it will be considered.

Question 14

what is hotchpot? what are the steps?

Answer 14

If a gift is treated as an advancement, it is accounted for in distributing the decedent’s estate by bringing it into hotchpot

1. add the advancemnts into the probate estates
2. divide into equal shares
3. deduct the advancments from the share

Question 15

what are two bars to sucession

Answer 15

the slayer rule and voluntary disclaimer

Question 16

what is the slayer rule

Answer 16

a person who kills the decdent cant inhert from them

Question 17

what is the key takeaway from Mahoney

Decedent died intestate of a gunshot wound, and his wife was tried for his murder, and was convicted by a jury of the crime of manslaughter

The decedent did not leave an issue, and was survived by his wife and his parents

ISSUE
Whether a widow convicted of manslaughter in connection with the death of her husband may inherit from his estate

Answer 17

when the circumstances of a death look like this, the inference is that they didn’t want the killer to get anything but because legislature does not have a slayer statute at the time, they make the widow CONSTRUCTIVE TRUSTEE

Question 18

what is a constructive trust in the mahoney case?

Answer 18

equitable tool; wife serves as trustee and her job would be to get the property back to the rightful beneficaries

Question 19

in mahoeny, the legislature had not adopted a slayer statute at the time, so what three approches did courts take when a slayer tried to take the estate of the person they killed?

Answer 19

1. the legal title passed to the slayer and may be retained by him IN SPITE of his crime
2. the legal tile WILL NOT pass to the slayer because of the equitable principle
3. the legal title passes to the slayer BUT equity holds him to be a CONSTRUCTIVE TRUSTEE for the heirs or next of kin of the decedent

Question 20

what do most slayer statutes say, and how do they reflect the probable intent of the decedent

Answer 20

All state snow have enacted a slayer statute and bar slayers from taking WHEN THE KILLING IS INTENTIONAL

Probable intent of dead= wouldn’t want the slayer to take

Question 21

what are unworthy heirs

Answer 21

those whose conduct bars inheritance –are usually limited to slayers
CASES/RULES ESTABLISHED

Question 22

what is the upc version of the slayer statute

Answer 22

If someone intentionally and feloniously kills the decedent, they lose all rights to any benefits from the decedent’s estate,

If the decedent didn’t have a will, the estate is divided as if the killer had disclaimed their share.

Question 23

what is the policy argument for slayer rules

Answer 23

consider what the probable intent of dead
Most people don’t want their killer to take from them

Question 24

what is the doctrine of disclaimer

Answer 24

you are not required to take a gift in a will that is given to you or in intestate share

Question 25

what must you do to disclaim

Answer 25

Most states require a writing, some need a signing
Some states have a timing requirement
Most are 9 months within the decedent’s death

Question 26

what happens if you disclaim

Answer 26

The law treats you as having predeceased the donor
Remember! If you die before decadent you can’t take

Question 27

what are three reasons why someone might want to disclaim?

Answer 27

1. tax minimization – fed law imposes taxes on gifts made during both life and death
2. creditor avoidance – As soon as you accept a gift, creditors will come for the money – BUT yu cant do this if youre already in bankrupcy
3. medicaid eligbility – if you have too much money you are not eligble for medicaid