INTESTATE SUCCESSION

Question 1

Surviving Spouse/Domestic Partner - Seperate Property

Surviving spouse or domestic partner inherits
decedent’s separate property as follows:

Answer 1

[1] If decedent leaves no issue, parents, brother or sister, or issue of a deceased brother or sister, all to surviving spouse or domestic partner.

[2] If decedent is survived by one child, or issue of a predeceased child, ½ to surviving spouse or domestic partner and ½ to child or child’s issue.

[3] If decedent is survived by 2 or more children, or issue of predeceased children, 1/3 to surviving spouse or domestic partner and 2/3 to the children or their issue.

[4] If decedent is survived by no issue, but leaves parent or parents or their issue, then ½ to parent or parents or their issue, ½ to surviving spouse or domestic partner.

Question 2

All Others (Intestate Leaves No Surviving Spouse or Domestic Partner) Intestate Scheme

Answer 2

1. Issue
2. Parents
3. Issue of Parents
4. Grandparents
5. Issue of Grandparents
6. Issue of a predeceased spouse or domestic partner:
7. Next of Kin
8. Parents of a predeceased spouse or domestic partner: This is the decedent’s former in-laws.
9. Issue of parents of a predeceased spouse or domestic partner.
10. Escheat

Question 3

Definition of a predeceased spouse or domestic partner:

Answer 3

a spouse or domestic partner who died while married to or
in partnership with the decedent; it is that spouse’s or
domestic partner’s issue, i.e., decedent’s former stepchildren.

Question 4

Per Capita/Representation

Answer 4

Whenever issue take by intestacy, or if a will or trust provides for issue to take without specifying the manner, they take in the manner provided in section 240 of the Probate Code.

Question 5

Per Capita Representation under section 240 of the Probate Code

Answer 5

we make our distribution

[i] at the first level someone is living and give shares to all living people at that generation, and

[ii] to deceased members of that generation who leave issue.

Question 6

If a will or trust calls for a distribution “per stirpes” or “by right of representation,” or by “representation,” we make a different distribution.

Such terminology requires a “strict per stirpes” distribution, as per section 246 of the Cal. Prob. Code.

Answer 6

That means you make the distribution at the first generation or first level, even if everyone is dead, so long as they left issue.

The issue then step into the shoes of their predeceased ancestor.

Question 7

Adopted Children

Answer 7

An adopted child is always treated as a natural child of the adopted parents

Question 8

Regarding the adopted child’s natural parents, the adoption severs the relationship.

Exception:

Answer 8

The relationship to the natural parent is not severed
if the adoption is by the spouse or domestic partner of the
natural parent, or after the death of either of the natural parents

Question 9

As to stepchildren or foster children
The child is treated as having been adopted if 3 elements are
satisfied:

Answer 9

[a] The relationship began during the child’s minority;
[b] It continued throughout the parties’ lifetimes; and,
[c] It is established by clear and convincing evidence that the stepparent or foster parent would have adopted but for a legal barrier.

Question 10

Equitable adoption

Answer 10

[1] Also known as adoption by estoppel.
[2] Arises when the parties hold themselves out as parent and child.

Question 11

Non-Marital Children

Answer 11

[A] In California, marital status of the parents is irrelevant.
[B] The key is whether a parent-child relationship existed, irrespective of marital status.

Question 12

In a domestic partnership, a parent-child relationship is established as to the non-birthing partner by means of one of several presumptions:

Answer 12

1. A child born during the domestic partnership is presumed to be the child of the non-birthing domestic partner.
2. If the non-birthing domestic partner and the birthing domestic partner formed (or even just attempted to form) a domestic partnership in a lawful manner after the child’s birth and
   
   1. the non-birthing domestic partner is named on the birth certificate, or
   2. the non-birthing domestic partner makes a voluntary promise to pay child support or is ordered to do so by a court, then a parent-child relationship is presumed to be established between the child and the non-birthing domestic partner.

Question 13

Half bloods Defined

Answer 13

Relatives who have only 1 common parent, and not 2.

Question 14

Half bloods Rule

Answer 14

Relatives of the half blood inherit the same as the whole
blood.