Intestacy Rules

Question 1

decedent survived by her spouse and no children

Answer 1

surviving spouse takes whole estate

Question 2

decedent spouse survived by spouse and children

Answer 2

surviving spouse takes $50,000 and 1/2 the residuary

the issue takes the leftover residuary

Question 3

decedent survived by children only

Answer 3

it passes to the children in equal shares

Question 4

decedent survived by children and issue of predeceased children

Answer 4

it passes to the children and alive children of the issue of the dead children by representation or per capita at each generation

Question 5

In NY, the default distribution is per capita at each generation in both intestacy and in a will.

Answer 5

Step 1: the property is divided into as many shares as there are issue at the first generational level at which there are survivors

Step 2: all living issue at the first generational level take one share each

Step 3: the shares of the deceased issue at the first generational level are combined and then divided equally amongst the takers at the next generational level in the same way

Rule: issue in the same generation will always have equal shares

Bar exam tip: per capita at each generation results int he same distribution as “per stirpes” if only one person at the first generational level died.

Question 6

inheritance rights of children

Answer 6

adopted children and their issue: full inheritance rights from the adoptive family and vice versa if child dies first

Question 7

inheritance rights of child adopted by new family

Answer 7

child has no inheritance rights from other members of the birth family

Question 8

child adopted by the spouse of a birth parent

Answer 8

child can inherit from both parents

Question 9

SPECIAL RULE

Answer 9

if the child is related to the decedent by both a birth relationship and an adoptive relationship, the child inherits under the BIRTH relationship UNLESS the decedent was the adopting parent, then the child inherits under the adoptive relationship.

Question 10

non-marital children

Answer 10

a non-marital child has full inheritance rights from the mother and the mother’s family

Question 11

inheritance from the father

Answer 11

paternity must be established by:

1) legitimization by marriage
2) an adjudication that the father is the parent
3) the father files a witnessed and acknowledged affidavit of paternity with the putative father registry
4) establish paternity by clear and convincing evidence, e.g. open and notoriously, a DNA test

remember: support is not enough

Question 12

DISMAL– Circumstances disqualifying spouse from taking intestate share

Answer 12

D==Divorce– a final decree of divorce or annulment recognized as valid under NY law

I==Invalid– invalid divorce or annulment

S==Separation decree– a final decree of separation was rendered against the surviving spouse

M== marriage is void as incestuous or bigamous

A== abandonment or lack of support: the surviving spouse abandoned or refused to support him or her.

Question 13

Lifetime gifts to intestate distributee– advancents

Answer 13

NY Rule: NY rejected the advancement presumption by statute. There is no advancement unless proven by:

1) contemporaneous writing made at time of gift and
2) signed by donor and donee

Question 14

Disclaimer

Answer 14

a distributee can disclaim in whole or in part, the person who disclaims is considered to have predeceased the decedent

Question 15

A valid disclaimer must be:

Answer 15

1) in writing, signed and acknowledged before a notary AND
2) affidavit stating no consideration received in exchange
3) irrevocable
4) filed with surrogate’s court within 9-mths after the date of death