Intestate Succession

Question 1

Property may pass by intestate succession when (general)

Answer 1

Property may pass by intestate succession when
- a decedent dies without having made a will or their will is denied probate - total intestacy, or
- a decedent’s will does not dispose of all of the decedent’s property, either because a gift has failed or because the will contains no residuary clause - partial intestacy

Question 2

Theory behind distribution scheme and decedent’s intent

Answer 2

Intestate succession gives property to people who society views as proper after the intestates debts and taxes are paid
- exact distribution varies considerably among the states

Question 3

Marital rights - who owns property if the decedent was married at time of death - generally

Answer 3

Use the law of the domicile - common law martial property system or the community property marital property system - at the time the property was acquired

Martial rights do not change as the couple moves from one state to another

Question 4

Which state’s intestacy law applies

Answer 4

Personal property - law of the decedent’s domicile at death

Real property - law of the situs of the property (location of the property)

Question 5

Intestate share of surviving spouse - common law

Answer 5

At common law, the surviving spouse was not an heir

A widow received dower - life estate in one-third of the real property husband owned during marriage, regardless of whether the property was still owned by her husband at the time of his death

A widower received curtest - life estate in all of wife’s real property provided a child was born to the marriage

Question 6

Posthumous children

Answer 6

A posthumous child is a child born after the death of their parent

If a person is in gestation at the time of the intestate’s death, most states will allow that person to be an heir

Some states will allow a child of the intestate who was not in gestation but who is born within a statutorily stated period of time to inhere under specified circumstances

Question 7

Disinheritance clause

Answer 7

At common law and in most states, a will provision expressly disinheriting an heir is ineffective as to any property passing by intestacy
- will must dispose of everything to effectively disinherit an heir

Under UPC and statutes in others, a testator may exclude the right of an individual to succeed in property passing by intestate succession
- if person survives the decedent, their intestate share passes as though they had disclaimed it