Intestancy Flashcards
Under UPC,
Surving Spouse (SS) takes
entire estate when?
All of Dec’s children are children with SS, or Dec has SS but no children or living parents
Under UPC,
SS takes $300K and 75%
of the remainder of the estate when?
No child of Dec surives him, but Dec has a surviving parent
Under the UPC,
SS takes $225K and 50% of the
remainder of the estate when?
All of Dec’s children are also SS’s children and SS has other children
Under the UPC,
SS takes $150K and 50% of the remainder of estate when?
Dec has children not related to SS
How is community property divided under intestancy?
- CC is divided equally - SS owns 50% of CP outright
- If D dies intestate, then D’s 50% of CP is given to SS and D’s SP is then distributed pursuant to the general intestancy scheme
Survival Requirment under:
Uniform Simultaneous
Death Act (USDA)
120 hour rule - must have survived D by 120 hours;
insufficient evidence of order of death - the property of each individual passes as though the other individual predeceased him
Survival requirement under
common law
Must have survived D for any length of time
How is time/date of death determined under
(1) Common Law and (2) Modern Standard
- Common Law: irreversible cessation of circulatory and respiratory functions
- Modern: brain death (no est criteria)
What standard of proof is required when making a claim to determine survivorship? (Under CL and USDA)
CL: preponderance of the evidence
USDA: clear & convincing evidence
What is presumption regarding
posthumously-born children?
Rebuttable presumption: the child is the child of the deceased H if the child was born w/in 280 days of his death.
What is an equitable adoption?
- A r/ship started during the child’s minority and established by clear and convincing evidence that a legal barrier prevented adoptoin; or
- A foster parent agreed w/ the genetic parents to adopt the child and the foster parent treated the child as his own.
What are the effects of an equitable adoption?
- The child can only inherit from (not through) the equitable adoptive parent
- Equitable parents can NOT inherit through or from the child
- Inheritence rights b/t child and genetic parents is unaffected
Intestancy for children born
out of wedlock under
modern trend
Modern: can’t inherit from natual father unless:
* father subsequently married natural mother
* father held the child out as his own and lived w/ the child or provided support;
* Paternity is proven by clean & convincing evidence after the father’s death; or
* Paternity is adjudicated during the father’s lifetime by a preponderance of the evidence
Intestancy for children born out of wedlock
under Uniform Parentage Act (UPA)
Requires proof of paternity for a child to inherit
* When father holds child out as his own - presumption of paterninty; child can bring an action to establish paternity at any time
* Otherwise - no presumption of paternity; child must bring action w/in three years of reaching the age of majority
* Post-humously-conceived child - not recognized
Calculating Share:
Per Capita
- Prop is divided equally among 1st Gen with at least one living member
- Share of non-living member of that Gen passes to the living issue of that member
- If they have no living issue, no property is allocated to non-living member
