INTESTATE SUCCESSION Flashcards
When do intestacy rules apply?
No will
Will fails (denied probate)
Will does not dispose of all probate property (undisposed-of property is subject to intestacy rules); or
Will specifies intestate distribution
Surviving Spouse’s Share
The share for the surviving spouse is:
-ALL IF:
[No descendants survive; or
One or more descendants survive, all of whom are descendants of the surviving spouse]
-ONE-THIRD if descendants survive, at least one of whom is not the descendant of the surviving spouse (remaining 2/3 passes to decedent’s descendants)
-NONE if surviving spouse has willfully abandoned decedent up to the time of death
[The abandoning surviving spouse is also barred from elective share, exempt property, family allowance, homestead and can’t be appointed administrator unless all beneficiaries do not object]
Shares of Descendants
Descendants take share of estate not passing to surviving spouse per capita with representation
-Property divided into equal shares at first generational level with living takers
-Each living person at that level takes a share
-Share of each deceased person at that level passes to their issue by right of representation
Shares of Other Heirs
If no descendants, estate passes:
-To parents or surviving parent
-If no parents, to descendants of parents
-If no descendants of parents, divided into maternal and paternal shares to grandparents or their descendants
-If no grandparents or their descendants, to nearest kin
-If not survived by any kin, to heirs of the decedent’s deceased spouse as if the spouse had survived the decedent and then died intestate
-If no relative capable of taking, the estate passes to the Commonwealth of Virginia (escheat)
[Note there is no “laughing heir” statute to cut off remote relatives; a person can inherit no matter how remotely related]
If Children Inherit, Watch for Special Cases
-Adopted children—treated same as natural child in adopting family; all inheritance rights cut off in family of natural parents, except:
[Adoption by spouse of natural parent has no effect on relationship between child and either natural parent; and
A child may inherit from parent whose parental rights were terminated by court order; parent may not inherit from child but relatives of parent may inherit from child]
-Stepchildren and foster children—no inheritance rights
-Nonmarital children—always inherit from mother. Can inherit from father if:
[Father and mother married before or after child’s birth, or
There is court judgment or other finding of parentage]
-Siblings of the half blood—inherit one-half as much as whole blood
-Posthumous children—child in gestation at decedent’s death inherits as if born in decedent’s lifetime
Effect of Disinheritance Clause
A disinheritance clause in a will that purports to expressly disinherit an heir is ineffective if the testator dies partially intestate. Property not disposed of by will passes by intestacy to heirs.
