Intestate Succession Flashcards
intestate
dying without a will / valid will, or the will does not adequately dispose of all the decedents property (partial intestacy)
basic idea of intestate succession
property remaining after debts and taxes are paid passes to intestate’s heirs in the way society views as “proper”
cannot be altered to fit decedent’s intent regardless of any evidence
applicable law for intestacy
marital rights - use law of the domicile at the time the property was acquired; CA has quasi-community property if couple moved from out of state
succession rights
1) personal property - use law of decedent’s domicile at death
2) real property - use law of the situs of the property
share of surviving spouse
community property and quasi-community property (personal property and CA real property that would have been community property if spouse had acquired it while domiciled in CA) - surviving spouse takes all
separate property depends on who survives
1) 1/3 to surviving spouse if decedent is survived by:
- more than one child
- one child and decedents of one or more deceased children
- descendants of two or more deceased children
2) 1/2 to surviving spouse is decedent is survived by:
- only one child
- descendants of a deceased child
- no descendants, but a parent or descendant of a parent
3) all to surviving spouse if no surviving descendant, parent, sibling, or descendant of a deceased sibling
share of descendants (or “issue”)
1) receive all of intestate’s property that does not pass to surviving spouse
2) if all descendants of same degree of relationship - each receives per capita share
3) if unequal degrees of relationship - per capita with right of representation
- divide property into equal shares at first generation w/ at least one surviving member
- create one share for each member of that generation who has at least one surviving descendant
- each member of the first generation receives one share
- the share created for a predeceased member of that generation passes in the same manner to the predeceased member’s descendants
what happens if the intestate is not survived by at least one descendant?
all the property not passing to the surviving spouse passes as follows (go down the chain if nobody in the above category is alive):
1) parents
2) descendants of parents
3) grandparents and their descendants
4) descendants of predeceased spouse
5) next of kin (descendants of great-grandparents)
6) parents of predeceased spouse or their descendants (e.g., mother in law)
7) escheat to state if none of the above survives
special rules for property inherited from a predeceased spouse
if surviving spouse dies without descendants, then the following property the surviving spouse received from the deceased spouse passes to the deceased spouse’s heirs rather than the surviving spouse’s heirs:
- real property (unless the deceased spouse died at least 15 years prior)
- personal property worth over $10k (unless the deceased spouse died at least 5 years prior)
treatment of adoptive parents
treated just like biological parent/child relationship
treatment of biological parents
adopted child generally does not inherit from biological parents or relatives unless the adoption is by a stepparent; parents do not inherit from adopted child unless by stepparent
treatment of stepchildren and foster children
generally no inheritance rights unless adopted; but will be treated as adopted if:
1) relationship began when child was a minor and continued through the parties’ joint lives and
2) clear and convincing evidence shows that stepparent or foster parent was precluded from adopting because of legal barrier (e.g., no consent from biological parent)
adoption by estoppel/equitable adoption
court will treat adoption as official under certain circumstances if conduct of parent makes it appear as if the person has adopted a child even though a formal adoption never occurred
treatment of non marital children
relationship to mother - treated same as marital child; just need proof that mother birthed the child to inherit
relationship to other parent - established if (and child can inherit if):
1) presumed parent (PP) and natural mother (NM) were married and child was born during marriage or w/in 300 days after it ended
2) PP and NM attempted to marry before the child’s birth and child was born during attempted marriage or w/in 300 days after
3) PP and NM attempted to marry after child’s birth and parent is named on birth certificate or parent promises/is ordered to pay child support
4) PP received child into home and held the child out as their own OR
5) court judgment of parentage
treatment of relatives of half-blood
treated the same as whole blood heirs
posthumous relatives
relative conceived before death - same share as if born during intestate’s lifetime
child conceived after intestate’s death - will inherit as if born during intestate’s lifetime if:
1) intestate authorized in signed and dated writing the use of their genetic material for posthumous conception and designated a person to control use of genetic material,
2) person designated control gave written notice w/in 4 months of issuance of death certificate to person who has control of disposition of decedent’s property that posthumous conception is possible, AND
3) child was conceived and in utero within 2 years of issuance of decedent’s death certificate
unworthy heirs (disqualified from inheriting)
1) heir killing intestate - deemed to have predeceased intestate
2) bad parent - treated as predeceasing child if:
a) parent did not acknowledge child
b) parent’s parental rights were terminated and not judicially reestablished OR
c) parent intentionally abandoned child during child’s minority for at least 7 consecutive years before child reached age of majority, and did support/communicate w/ the child during that time
3) abuse or neglect of elder or dependent adults - abuser precluded from inheriting
4) aliens/non-citizens of the US - NOT DISQUALIFIED from being able to inherit
