Intestate Succession Flashcards
Surviving spouse
Modern Law Under modern law, the spouse is an heir. Dower and curtesy have been eliminated or greatly altered. The share of the surviving spouse depends on factors such as the number of children and whether the surviving spouse is the other parent of the deceased spouse’s children.
Equal Shares If All Children Survive If all of the decedent’s children survive the decedent (or all of the decedent’s predeceased children have no descendants who survive the decedent), each child receives an equal share
Classic Per Stirpes Under the classic (or strict) per stirpes distribution of the common law, one share is created for each child and one share for each deceased child who has at least one surviving descendant. Each child receives one share and one share passes to a deceased child’s descendants by representation.
Majority Rule—Per Capita with Representation In most states, a decedent’s descendants take their shares per capita with representation, which means the property is divided into equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to their issue by right of representation.
Modern Trend—Per Capita at Each Generational Level A growing number of states and the UPC make the initial division of shares at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Persons in the same degree of kinship to the decedent always take equal shares.
DISINHERITANCE CLAUSE At common law and in most states, a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy; that is, the will must dispose of everything to effectively disinherit an heir. However, under the UPC and statutes in several non-UPC states, a testator may exclude the right of an individual to succeed to property passing by intestate succession (a “negative” will provision). If the person survives the decedent, their intestate share passes as though they had disclaimed it.
ADVANCEMENT OF INTESTATE SHARE An advancement is a lifetime gift to an heir with the intent that the gift be applied against any share the heir inherits from the donor’s estate. At common law, a substantial lifetime gift to one of the decedent’s children was presumed an advancement. Most courts now apply the doctrine to any heir, but reverse the presumption. A lifetime gift is presumptively not an advancement unless shown to be intended as such. UPC states, as well as many non-UPC states, go further, finding an advancement only if it is: (1) declared as such in a contemporaneous writing by the donor, or (2) acknowledged as such in a writing by the heir (which need not be contemporaneous).
DISCLAIMERS An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc., cannot be forced to accept an inheritance or gift under a will. The heir or beneficiary can disclaim an interest.
Requirements of Disclaimer In most states, a disclaimer must be written, signed by the disclaimant, acknowledged before a notary, and filed with the appropriate court within nine months of death (although the time period may vary). To be effective for federal tax purposes, the disclaimer must be in writing, irrevocable, and filed within nine months of the decedent’s death or the beneficiary’s 21st birthday.
DECEDENT’S DEATH CAUSED BY HEIR OR BENEFICIARY In nearly all states, a person who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent’s estate. The property passes as though the killer predeceased the victim. This result is usually reached by the operation of a specific statute (called a “slayer statute”) or by imposition of a constructive trust.
