intestacy : transfers to children - genetic and adoptive Flashcards
what is the key takeaway from hall
V died and was survived by his widow and their four kids
Two years later, the widow married a new man, Walter, who adopted her children that she had with V
25 years later, V’s brother died childless, unmarried, and intestate
His sole heirs were his surviving brother and sister and the CHILDREN OF BROTHERS AND SISTERS WHO DIED BEFORE HIM
V’s twin brother, was appointed personal representative of the estate
The four natural children of V noted exceptions, alleging that they were entitled to the distributive share of their NATURAL UNCLE’S estate that their NATURAL FATHER would have received had he survived W
Did the trial court err in construing Maryland’s current law regarding natural inheritance by adopted persons so as to deny the apellant’s the right to inherit through their natural parental uncle, when said appellants were adopted as minors by their stepfather after the death of their natural father and the remarriage of their natural mother?
An adopted person does not have the right to inherit from the estate of a natural parent who dies intestate, nor the right to inherit through that natural parent by way of representation.
Adoption does not confer upon the adopted more rights than those that a genetic child has
what are the names of the three approaches to adopted children?
approach one – minority approach and Hall
approach two – mintory approach
apporach three – majority apporach and 1990 UPC
what do all three approaches to adoptive children have in common
after adoption, no inheritance upward( genetic parent cant inherit from children once they are adopted
Its because the adoptive parents how have the financial obligations to care for the child
go back to slide 15 of class three to review the adopted childrem three approaches
see slide 16 for the 2019 upc adopted children approach
Can adopted children take as beneficiaries under T’s will that makes gifts to A’s “children,” “heirs,” or “issue”?
whats the traditional approach, transitional, and modern
Traditional approach – stranger to the adoption rule (adopted child is barred if the donor was not the adoptive parent)
transitional – an adopted may be able to take if adopted before the donar’s death; but only if will said to “children” not “heirs” or “issues”
modern – adoptive child is the presumptive beneficiary
what is the key takeaway from minary
Amelia Minary died, leaving a will devising her estate in trust to pay the income to her husband and three sons, for their respective lives
Lang of the trust: After the trust terminates, the remaining portion of the trust fund shall be distributed to my then surviving heirs, according to the laws of descent and distribution then in the force in KY, and, if no such heirs, then to the first Christian church, Louisville, KY
Alfred is the last one surviving from his family, but he has NO children to represent him when he dies
He wants myra to take when the trust terminates upon his death so he adopts her
Did the last son’s adoption of his wife make her eligible to inherit under the provision of his mother’s will?
More specifically – is the wife included in the term ‘my then surviving heirs according to the laws of descent and distribution
Where an adult is adopted for the purpose of making that person an heir entitled to inherit under a pre-existing testamentary instrument, that person will not be considered an heir if doing so conflicts with the intention of the testator.
court focused on the intent of Amelia; focuses on the lang “my then surving heirs” to mean she wants us to look to intestacy statues
via UPC – When interpreting a gift to a group in a legal document, if the person making the gift (the transferor) is not the parent of someone, that person is not treated as a child of the transferor unless..
what should you do if you dont like it?
The person (whether the parent, a relative, or the spouse of the parent) acted like a parent before the individual turned 18; or
The parent intended to act as a parent but couldn’t because of death or another reason, as long as there is clear evidence of this intention.
you can define how you want child to be defined; this is just a default rule!
what is the Marital children uniform paratenge act
An individual is presumed to be a parent of a child if . . . the individual and the woman who gave birth to the child are married to each other and the child is born during the marriage . . . .”
when someone other than the adoptive parent says children what does that mean
via default rule –presume they are talking about genetic and adoptive children
under approach one (ie the minority approach and the approach in hall) if the adoptive parent is a non step parent OR a step parent, how does it proceed?
- the child will inherit from adoptive parent
- the adoptive parent inherits from the child
- the child WILL NOT inherit from genetic parent (except spouse of stepparent)
- the genetic parent will not inheret from the child(except spouse of stepparent)
under approach two (the other minority approach) if the adoptive parent is a non step parent OR a step parent, how does it proceed?
- the child will inherit from adoptive parent
- the adoptive parent inherits from the child
- the child will inheret from genetic parent
- the genetic parent will not inheret from the child(except spouse of stepparent)
under the upc/majority apporach to adopted children, how does it proceed if the adoptive parent is a non step parent OR a step parent
- the child will inherit from adoptive parent
- the adoptive parent inherits from the child
- the child will inhert from gentic parent (if adopted parent is a step parent); will not if adopted parent is non step parent
4.the genetic parent will not inheret from the child(except spouse of stepparent)
how does the 2019 adopted children statute add nuance to the situation of Child Adopted by Nonrelative during Life of Genetic Parents
- child will inherit from adoptive parent
- adoptive parent will inherit from child
- child will not inherit from genetic parent
- genetic parent will not inherit from genetic child
how does the 2019 adopted children statute add nuance to the situation of Child Adopted by Stepparent
- child will inherit from adoptive parent
- adoptive parent will inherit from child
- child will inherit from genetic parent
- genetic parent will not inherit from genetic child (except spouse of stepparent)
