Intestate Succession Flashcards
When does intestate succession apply?
Property may pass by intestate succession when:
- total intestacy -> decedent dies w/o having made a will or their will is denied probate
- partial intestacy -> decedent’s will does not dispose of all of the decedent’s property, either b/c a gift has failed or b/c the will contains no residuary clause
Basic Idea + Theory of Intestate Succession
- property remaining after intestate’s debts + taxes are paid passes to intestate’s heirs
- theory: gives property to people who society views as “proper” after intestate’s debts + taxes are paid
- distribution varies considerably among states
- distribution cannot be altered to fit decedent’s intent regardless of ev that shows decedent wouldn’t have wanted property to pass the way intestacy provides
Applicable Law for Intestate Succession
- if the decedent was married at the time of death, any marital rights are determined by the law of the domicile at the time the property was acquired
- for personal property, use law of decedent’s domicile at death
- for real property, use the law of the situs of the property
Intestate Share of Surviving Spouse - Common Law
- surviving spouse was not an heir
- widow received dower, which is a life estate in one-third of the real property her husband owned during the marriage, regardless of whether the property was still owned by husband at time of death
- widower received curtesy -> life estate in all of wife’s real property provided that a child was born to the marriage
Intestate Share of Surviving Spouse - Modern Law
- spouse counts as an heir
- no dower or curtesy
- if descendants also survive -> spouse takes one third or one half of the estate in most states
-> Uniform Probate Code (UPC) -> surviving spouse takes entire estate if decedent is survived by descendants who are all descendants of the surviving spouse + surviving spouse has no other surviving descendant - no descendants survive -> surviving spouse takes entire estate in most states
-> UPC though - entire estate only if not survived by descendants OR parents
Intestate Shares of Descendants If All Children Survive
- if all of decedent’s children survive the decedent (or those who die have no descendants who survive the decedent), each child receives an equal share
- descendant from a younger generation can’t take if the older generation is still alive
Descendants - Methods of Computing Shares
- apply when all descendants belong to a second or more distant generation, or the descendants are from multiple generations
Three key methods:
- classic per stirpes
- per capita with representation
- per capita at each generational level
Classic Per Stirpes Method
- 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
- divides shares at the child generation even if no child survives the intestate
- used in a small minority of states
Per Capita With Representation
- North Carolina (and majority rule)
- 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
- if all children are deceased + all property is going to the grandchildren, each grandchild takes an equal share rather than the share the parent would’ve taken had the parent survived
Per Capita at Each Generational Level
- growing number of states + 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 takers at the next generational level
- persons in the same degree of kinship to the decedent always take equal shares
- if some children alive + some dead, the children each take an equal share, BUT the remaining property is pooled + each grandchild will receive and equal share
Shares of Other Heirs
- if decedent is NOT survived by spouse or descendants, the estate is distributed to ancestors (persons related in ascending lineal line such as parents) and collaterals (persons related but not in a lineal line such as siblings, uncles, aunts, etc.)
Estate passes in order below (proceeds down list until taker found):
- Parents or surviving parent
- brothers + sisters + their descendants
- note that if one parent + at least one sibling survive, the UPC + some states give the entire estate to the surviving parent, vs. others give half and half
- one-half to paternal grandparents + one-half to maternal grandparents + their descendants (both halves to one side if no takers on other side)
- one-half to nearest kin on maternal side + one-half to nearest kin on paternal side (all to one side if none on other side)
- failing all above, estate escheats to the state
Adopted Children
- treated same as biological children of the adopting parents for purposes of intestate succession
- adopted parents also inherit from adopted children
- generally no inheritance in either direction between adopted children + their biological parents (except where one of the biological parents marries an adopting parent or the child is adopted by a close relative)
- most states make no distinction based on age of child at time of adoption
Stepchildren and Foster Children
- generally have no inheritance rights unless adopted by stepparent or foster parent
- doctrine of adoption by estoppel -> permits child to inherit from or through step parent or foster parent when legal custody of the child is gained under an unfulfilled agreement to adopt
- if the child dies though, many states prohibit stepparent or foster parent from inheriting
Nonmarital Children
- always inherit from the mother
- generally inherit from the father if:
1) father married mother after child’s birth
2) man was adjudicated to be the father in a paternity suit OR
3) after his death + during probate proceedings, the man is proved by clear + convincing ev to be the father
Half and Whole Blood
- most states make no distinction between half + whole siblings -> inherit equally
- however, some jurisdictions give half-siblings half shares or cut them out from inheriting if whole siblings exist
