Intestate Distribution Flashcards
3 Categories of Bar Qs on Intestate Succession
1) Qs of scheme (statutory provisions)
2) Qs of status
3) Qs of alteration
Statutory Provisions: General Rule for Spouses
A surviving spouse will always take some portion of the decedent’s estate. How much will depend on what other relatives of the decedent also survive that decedent.
Intestate: What if there is a Surviving Spouse and No Surviving Descendants?
Surviving spouse takes the entire estate.
Intestate: What if There is a Surviving Spouse and Surviving Descendants from the Union of the Surviving Spouse and the Decedent?
The surviving spouse takes the entire estate.
Intestate: Surviving Spouse and Surviving Parents of the Decedent
- The surviving spouse takes the first $300,000 plus 3/4 of the balance of the intestate estate.
- The rest (if any is left over) goes to the surviving parents equally.
Intestate: Surviving Spouse & Surviving Descendants of Decedent & Non-Descendants of Decedent (Step-Children)
- The surviving spouse takes the first $225,000 plus 1/2 of the balance of the intestate estate.
- The rest (if there is anything left) goes to the decedent’s descendants.
Intestate: Surviving Spouse & Decedent’s Children (Surviving Spouse’s Step-Children)
- Surviving spouse takes the first $150,000 plus 1/2 the balance of the intestate estate.
- The rest (if anything is left) goes to the decedent’s descendants.
Statutory Provisions: When There is No Surviving Spouse or Spouse that is Entitled to Take
The estate will be distributed to the decedent’s descendants by rep. Different schemes of rep. include:
- pure/strict per stirpes (least common modern approach)
- modern/modified per stirpes (majority modern approach)
- UPC approach
- look at charts in Bar notes for aid.
Pure/strict per stripes
- step 1 –> go to child level (no matter what) and count the number of live roots in the generation
- step 2 –> divide down as needed
Modern/Modified Per Stirpes
Step 1 –> go to first generation with at least one living member and count the number of live roots in the generation
Step 2 –> divide down as needed
UPC Approach
- Step 1 –> Go to the first generation under the decedent with at least one surviving member
- Step 2 –> Count the number of live roots
- Step 3 –> allocate a share to each living member in that generation
- Step 4 –> combine the remainder, if any, and repeat by distributing a share of that remainder to any qualified takers at the next generation.
Intestate: When there are No Surviving Spouses and No Descendants
- The surviving parents of the decedent take in equal shares (if only one parent survives that parent takes all)
- If there are no surviving parents –> the descendants of the decedent’s parents or either of them take by rep.
- If there are no descendants, parents, or descendants of parents –. go to grandparents, or if none, to their descendants by rep.
- If there is no one there either –> the estate will pass to the next closest relative under a degree of consanguinity, or will escheat to the state.
Does the Uniform Simultaneous Death Act Apply To Intestate Succession
Yes. Therefore, an heir must still survive decedent by 120 hours.
Problems with Intestate Distribution
Include:
- adopted children
- stepchildren
- half-blood relatives
- non-marital children
- posthumous children
Adopted Children: Transplantation Theory
- An adopted child generally loses any relationship with his natural parents and is generally treated as the natural-born child of the adoptive parents, so that such child can inherit from and through his adoptive parents and their kindred, and the latter can inherit from and through the adopted child.
- Therefore, the majority of states hold that an adopted child can no longer inherit from natural parents. In a minority of jurisdictions, a child who is adopted to a relative of the natural parent may still take from the natural parent.
Adoption After Natural Parent’s Death
If a natural parent dies and the child is later adopted:
- within the decedent’s family or
- by the surviving parent’s new spouse
- the child will still have inheritance rights through the deceased natural parent’s family estate
What Happens When a Child’s Natural Parent Remarries and The Step-Parent Adopts Them With Natural Parent’s Consent?
The child will not be cut off from the remarrying parent or the other natural parent (can inherit from both) and can also inherit from the adoptive parent.
Stepchildren
While they might be loved and cherished, have no inheritance rights unless they are legally adopted or can prove adoption by estoppel (which is essentially an unperformed K to adopt).
Half-Blood Relatives
In most jurisdictions, they and their rep. take equally with relatives of the whole blood and their representatives.
Non-Marital Children
- A child born out of wedlock is considered the child of his mother and her kindred for purposes of intestate inheritance.
- for similar purposes, a child born out of wedlock is considered to be the child of his or her father if paternity is sufficiently established, such as where:
- during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home; or
- a judicial determination of paternity exists
Posthumous Children
Person’s conceived before the decedent’s death but born alive thereafter take as if born in biological parent’s lifetime. Child must survive its own birth by 120 hours.
What About Children Conceived Posthumously? (E.g. In Vitro)
Can receive property if in utero within 36 months of death or born not later than 45 months after death.
