INTESTATE ESTATES Flashcards
Spouse’s Share of INTESTATE estate if no descendants of decedent
spouse gets entire intestate estate
Spouse’s INTESTATE share if descendants of decedent are not spouse’s
1/2 to spouse
(1/2 to lineal descendants)
Spouse’s share of INTESTATE estate if descendants are spouse’s, but not decedent’s AND spouse has separate lineal descendants
1/2 of estate to spouse
1/2 to lineal descendants of decedent
Strict Per Stirpes
Florida’s method for distribution of the intestate estate
Share of other Heirs - INTESTATE
For the part not passing to surviving spouse, or no surviving spouse:
1. Descendants of D
*if descendant (child of D) predesceases D, that share of descendant would go to the grandchildren (descendant of descendant)
- if no descendants, D’s mother and father
- if no surviving parents, to the D’s siblings - COLLATERAL HEIRS
* (or descendants of D’s siblings - nieces and nephews if sibling predeceased D) - if no suriving siblings, nieces or nephews - then grandparents
* 1/2 to maternal, 1/2 to paternal - If no surviving grandparents, to aunts and uncles of D
* or descendants of them if predeceased D- cousins - If no maternal/paternal kindred, estate to go to other kindred who survive in order above
* go up to grandparents and then down the line of their collateral heirs - if no kindred of any kind, whole estate goes to last deceased spouse of D as if deceased spouse had survived D and then died intestate
Consanguity
Blood line
Inheritence per stirpes
descent shall be per stirpes whether to descendants or collateral heirs
FL Half-blood Rule
INTESTATE ONLY - and ONLY when inheriting from collateral heirs (Siblings)
when property descends to collateral kindred (siblings) - and part are whole siblings and part half-siblings
* the half bloods only get 1/2 of the whole bloods’ share
* if all half bloods - each get whole share
works out like this:
1 half blood, 1 whole blood = half blood gets 1/3, whole blood = 2/3
After-born heirs
heirs conceived b/f death but born after - inherit intestate share as if alive when D died
General Rule Adopted persons - INTESTATE
considered descendant of adopting parent
* not descendant of birth parents or prior adoptive parents WITH EXCEPTIONS
Adoption of child by spouse of natural parent
- has no effect on relationship with natural parent or natural parent’s family
Adoption of Child by parent’s spouse after other parent dies
- no effect on relationship b/w child & deceased parent’s family
Adoption by close family member -
- no effect on relationship b/w child and deceased parents’ family
Bastard child - INTESTATE
- descendant of mother and her family
- descendant of father and is natural kindred if:
(a) natural parents were married b/f or after birth (doesn’t matter if attempted marriage void)
(b) paternity is established by adjudication before or after father’s death
(c) paternity is acknowledged in writing by the father
Right to Elective Share - prevents spouse if D ignores them
- surviving spouse of person who dies, domiciled in FL - has right to elective estate of D - 30% - different than probate estate
- election does not reduce what spouse would receive if they didn’t make election
- spouse is not treated as predeceasing decedent
Time to file for elective share
filed ON or Before the earlier date that is:
(1) 6 mo after the date of service of the copy of notice of administration
OR
(2) date 2 years after D’s death
Pretermitted Spouse
D married spouse after will had been drafted and didn’t make a new one
Pretermitted spouse’s share
surviving spouse receieves a share in the estate = to the value of what the surviving spouse would have received after D died INTESTATE unless:
(1) provisions made for her or waived by here in prenup/postnup
(2) spouse provided for in will (generic)
(3) Will discloses intention not to make provision for spouse
* then she could take the elective share
Pretermitted Children
when D omits to provide by will any child born after will made, child would get whatever he would have gotten intestate unless:
(1) it appears omission was intentional
(2) testator had 1+ child when the will was executed and devised substantially all of the estate to surviving parent of pretermitted child, that parent entitled to take under the will
When does Descent of Homestead rule apply?
WHEN D owns homestead solely in their name and dies intestate or tries to devise it to someone else
How does Homestead under Descent of Homestead rule?
if there is no will homestead descends in same manner as other intestate property - BUT
* if D is survived by spouse and 1 or more descendants -
* surviving spouse takes life estate with vested remainder to descendants (per stirpes) in being at time of D’s death
* in lieu of life estate - surviving spouse can elect to take an undivided 1/2 interest and lineal descendants get 1/2 per stirpes as tenance in common
Restraints on Devising Homestead
FL - Homestead can’t be subject to devise if owner survived by spouse or minor children, except that homestead can be devised to spouse if no minor children
- if devised otherwise - it’s void, so then it goes intestate (which would then include adult children)
What is Exempt Property in an estate
if D was domiciled in FL at death, surviving spouse or children of D have right to a share of the estate - that share is designated as “exempt property” -
Property that can’t be attached by creditors
