Intestate

Question 1

Surviving Spouse

Answer 1

Common Law: Widow would get 1/3 of husband’s real property; widower would get life estate in wife’s real property if they had a child

Modern Law:
-If spouse + descendants:
-Majority: spouse gets 1/3 or 1/2 of the estate (majority)
-UPC: spouse gets entire estate if all of the descendants are that spouse’s descendants and the spouse has no other descendants

-If spouse only:
-Majority: spouse gets entire estate
-UPC: spouse gets entire estate unless decedent is survived by parents

Question 2

Surviving Descendants

Answer 2

If all decedent’s children survive, or if all the predeceased children have no surviving descendants, each child will receive an equal share.

Otherwise, one of the following methods is used:
Per stirpes (minority)
Per capita with representation (majority)
Per capita at each generation (modern trend)

Question 3

Per Stirpes

Answer 3

Create one share for each surviving child and one share for each deceased child who has a surviving descendant. That share will pass to the deceased child’s descendants.

Question 4

Per Capita with Representation

Answer 4

Locate the level at which there are living takers. Create one share for each living person at that level and one share for each deceased person at that level who has surviving descendants. That share will pass to the deceased child’s descendants.

Question 5

Per Capita at Each Generation

Answer 5

Locate the level at which there are living takers. Create one share for each living person at that level and one share for each deceased person at that level who has surviving descendants. Pool together all the deceased persons’ shares and divide them equally amongst the takers at the next level.

Question 6

Other Family Members

Answer 6

If no spouse + no descendants, estate goes in this order:
-parents
-siblings or their descendants
-split between maternal/paternal grandparents and their descendants
-split between nearest kin on maternal/paternal sides
-state

Question 7

Adopted Children

Answer 7

Treated the same as bio children

No inheritance from bio parents (except if bio parent marries an adopting parent or adopted by a close relative)

Question 8

Step-Children

Answer 8

No inheritance rights unless adoption by estoppel

Question 9

Non-Marital Children

Answer 9

Always inherits from mother

Can inherit from father if he marries the mother after birth, he is adjudicated the father, he is proved by clear and convincing evidence to be the father during probate

Question 10

Posthumous Children

Answer 10

Majority: If in gestation at time of death, can inherit

Minority: Can also inherit if born within a stated period of time after death