Intestate Succession

Question 1

When does property pass by intestate succession?

Answer 1

1. The decedent dies without having made a will
2. The decedent’s will is denied probate (e.g. it was improperly executed or successfully contested)
3. The decedent’s will does not dispose of all of his property

Question 2

What does a surviving spouse take?

Answer 2

1. Majority rule: one-third or one-half of the estate
2. In some states there is a set dollar amount
3. If all of the deceased spouse’s descendants are also descendants of the surviving spouse, under UPC §2-102 the surviving spouse takes all.

Question 3

“issue” and “descendants” are:

Answer 3

Synonymous.

Question 4

If the deceased is only survived by a spouse:

Answer 4

The spouse takes everything.

Question 5

If the decedent is survived by children

Answer 5

1. Children inherit
2. Descendants of deceased children also inherent
3. If there are children parents and collateral kin never inherit

Question 6

What are the intestate distributions schemes?

Answer 6

1. Majority Rule: per capita with representation - property is divided evenly at the first generation at which there are living takers (e.g. to A B C are the first level down. They each take a third. A1 and A2 are A’s kids. They each take 1/9 if A is dead.).
2. Classic Per Stirpes: distribute at the child level regardless of living takers
3. Modern Trend: per capita at each generational level - initial division occurs at the first generation of living takers. But, below them the shares are combined and then distributed evenly so that each person within a generational tranche has equal shares.

Question 7

Order of takers in intestate succession:

Answer 7

1. Spouse
2. Descendants
3. Parents
4. Parents’ descendants
5. Grandparents
6. Nearest of kin (but limited by the laughing error statute)
7. Escheat (passes to the government)

Question 8

Special cases in intestacy succession

Answer 8

1. Adopted children
2. Stepchildren and foster children
3. Posthumous children
4. Non-marital children

Question 9

Adopted Children

Answer 9

With adopting family, adopted children are treated like biological children

With natural parents, inheritance rights are cut off.

Exception 1: if there is one adoptive parent partnered with a biological parent, that pair treats the adopted child as a biological child. The natural parent not in the equation still gets cutoff.

Exception 2: if a natural parent dies and an adopting parent enters the equation or a family member adopts the child, the adopted child is treated like a biological child and his ties with relative aren’t cut off.

Question 10

Stepchildren and Foster Children

Answer 10

They have no inheritance rights.

Exception 1: they can estopp the step or foster parent from precluding them from taking if there was an agreement between the natural parent and the step or foster parents that they would adopt the child.

Question 11

Posthumous Children

Answer 11

A child in gestation at the decedent’s death inherits as if born during the decedent’s lifetime.

Question 12

Non-marital Children

Answer 12

They can inherit from the mother.

They can inherit from the father as well when:

1. The father married the mother after birth (“legitimated by marriage”)
2. The man was adjudicated to be the father in a paternity suit
3. After the man’s death he is shown to be the father (usually in a probate proceeding).

Question 13

Half bloods

Answer 13

There is no distinction between a whole and half blooded child.

Question 14

What are the majority and minority rules for disinheritance clauses?

Answer 14

Majority: these clauses are voided if the testator dies partially intestate.

Minority: under the UPC and in a minority of states the negative bequest is given full effect and the disinherited person is treated as though he had disclaimed his intestate share.