Intestacy Rules

Question 1

Distribution- Decedent Survived by spouse and no children

Answer 1

Surviving spouse takes whole estate

Question 2

Distribution- Decedent survived by spouse and children

Answer 2

Surviving spouse takes $50,000 + residuary estate

Children take remaining

Question 3

Distribution- Decedent survived by children only

Answer 3

passes to children in equal shares

Question 4

Distribution- decedent survived by children and issue of predeceased children

Answer 4

passes to alive children & the issue of the predeceased children by representation (per capita at each generation)

Question 5

Distribution- if not survived by spouse or issue

Answer 5

parents

if deceased

issue of parents

if none

grandparents or if predeceased, their issue

and so on…

Question 6

Adopted children inheritance rights

Answer 6

General rule: adopted children only have inheritance rights from their adopted family

Exceptions
-child adopted by the spouse of a birth parent: child and child’s issue can inherit from both adopting parent & either birth parent

-child adopted by a relative: child inherits under birth relationship unless the decedent was adopting the parent,, then the child inherits under the adoptive relationship

Question 7

Non-marital children inheritance rights

Answer 7

General Rule: a non-marital rule has full inheritance rights from mother & mother’s family

However, a non-marital child inherits from the birth father only if paternity is established by:

(1) Father marries the mother after the chidl’s birth;
(2) Filiation proceeding adjudicated man as father;
(3) Father files an affidavit of paternity with Putative Father Registry; or
(4) paternity is established by clear & convincing evidence, which may include, but not limited to:
- DNA test;
- openly & notoriously acknowledging child to be his own;
- gifts, visitations

Question 8

Circumstances disqualifying Spouse from Taking Intestate

Answer 8

DISMAL

Divorce
Invalid Divorce
Separation Decree (agreement doesn’t disqualify unless stated otherwise)
Marriage is Void (Incestuous or Bigamous)
Abandonment or
Lack of support

Assume surviving spouse predeceased

Question 9

Lifetime gifts to intestate distributee- advancements

Answer 9

NY- no advancement unless proven by:

(1) contemporaneous writing made at time of gift; AND (2) signed by donor or donee

Question 10

Disclaimer (Renunciation) by Intestate Distributee

Answer 10

Considered to be predeceased
-tho, use per stirpes distribution to issue of disclaimed to avoid inequitable result

valid disclaimer must be:

(1) in writing, signed and acknowledged (before a notary public);
(2) accompanied by a separate affidavit stating that no consideration was received for disclaiming (unless Surrogate court authorizes receipt of consideration);
(3) Irrevocable; AND
(4) Filed with the Surrogate’s Court within 9 months after death