Intestate succession Flashcards
Intestate succession
- intestate succession: succession following the partial or total failure of a will
- community property: common marriage property
i. decedent’s share of community and quasi-community property passes to their surviving spouse (or domestic partner)
Intestate succession - surviving spouse or domestic partner
- heavily tested
- community and quasi-community property: inherits half, and already owns other half
- separate property: surviving spouse or domestic partner takes
i. all: if no surviving issue, parents, siblings, or issue of deceased siblings
ii. if survived by no issue, but leaves a parent or their issue (siblings)
a. surviving spouse takes half of separate party, other half to parents or sibling
iii. if survived by one child, or issue of a predeceased child
a. surviving spouse takes half, other half to the child or child’s issue
iv. if survived by two or more children or issue o predeceased children
a. surviving spouse takes 1/3. 2/3s to the surviving children or their issue
v. summary:
a. spouse gets all if no kids, parents, siblings, or nephews/nieces
b. if no kids, parents and siblings or nephews and nieces get half
c. but if kids, then the kids and spouse share
Intestate succession- people other than surviving partner
- heavily tested
- applies in cases where there is no surviving spouse or domestic partner
- ten breaks
i. issue (kids)
ii. parents (go up a generation, and if not, then to their issue)
iii. issue of parents (siblings): bar usually does not test after this
iv. grandparents
v. issue of grandparents (aunts)
vi. issue of a predeceased spouse or domestic partner (decedent’s former stepchildren)
vii. next of kin
viii. parents of a predeceased spouse or domestic partner (decedent’s former inlaws)
ix. issue of parents of predeceased spouse or domestic partner (decedent’s former stepsiblings)
x. escheat to state
Intestate succession- per capital representation
- heavily tested
- applies if the issue takes by intestacy, or in a will or trust but without specifying the manner
- if all issue are of the same degree (same generation): issue take per capita (equally)
- if issue are of different degrees:
i. per capita with right of representation: (default, unless will specifies per stirpes)
a. property is divided into equal shares at the first generation with living takers
b. each living person at that level takes an EQUAL share– each grandchild gets same share. no matter the number of siblings they have
c. share of each deceased person passes to their issue
ii. per stirpes distribution: (not heavily tested)
a. property divided at the level of decedent’s children regardless of if there are other living takers
b. issue step into the place of their parents. splits the share that their parent would have gotten. i.e. each “line” of the family tree splits an equal share.
this is antiquated.
per capita (not tested) just means that if if a member of the identified group predeceases the decedent, then his or her share would pass to the other members of the group rather than to his descendants. (gift to grandkids just lapses if there are other living issues)
Intestate succession - adopted children
i. an adopted child is treated as a natural child of the adopted parents
a. an adopted child inherits from adoptive parents and their relatives, and vice versa
ii. an adopted person does not inherit from their natural parents or relatives
iii. exception: adoption by spouse of natural parent after that parent’s deaths
Intestate succession - stepchildren and foster children
i. step children and foster children generally have no inheritance rights unless adopted
ii. treated as adopted: a child is treated as adopted if
a. the relationship began when the child was a minor
b. child would have been adopted but for a legal barrier (ex. biological parent does not consent to the adoption)
iii. adoption by estoppel: a stepchild or foster child can inherit if
a. parent holds them out as having adopted the child (uses last name, told child she was adopted), or
b. legal custody of the child was gained through a (yet unfulfilled) agreement to adopt,
c. foster parents confuse a guardianship proceeding with an adoption proceeding
Intestate succession - nonmarital children
i. a parent-child status does not depend on parents’ marital status
ii. relationship to mother
a. established by proof of her giving birth to the child
b. a woman contracting with the surrogate is the natural mother
iii. relationship to father
a. established by presumption if
i) born during partnership (or within 300 days of termination)
ii) born within 300 days after an attempted to marry (even if marriage is voidable) after the child’s birth, and father is named on the birth certificate or agrees/is ordered to pay child support
iii) father received the child into his home and treated her as his natural child
b. established if clear and convincing evidence that the father openly held out the child as his own
i) requires unconcealed affirmation of paternity in open view, not just private acknowledgement
ii) does not require writing or contact with the child
iv. relationship to non-birthing domestic partner is established in same manner as establishing relationship to father
Intestate succession - half-blood relatives
relatives with only one common parent) inherit the same as whole blood relatives
Intestate succession - when parents are prohibited from inheriting
i. parents do not inherit from their child and are treated as predeceased if:
a. the parent did not acknowledge the child
b. the parent’s parental rights were terminated and not judicially reestablished
c. the parent left the child with intent to abandon during minority for at least seven consecutive years before the child reached majority, during which time the parent did not support or communicate with the child
intestate succession - posthumous children
i. children conceived during life but but born after death
a. heirs of the intestate
b. beneficiaries of testator’s will
ii. if a child conceived after decedent’s death can show by clear and convincing evidence,
a. decedent authorized use of his genetic material in a signed and dated writing
b. person designated to control the use of the genetic material gave written notice within four months of decedent’s death certificate issuance to person controlling estate
c. child conceived and in utero within two years of decedent’s death certificate issuance
d. then the child is treated as born during decedent’s life and after execution of all testamentary instruments, if the child show by clear and convincing evidence
Succession issues applicability
common to intestate succession and wills
Succession issues- simultaneous death
- a person must generally survive the decedent to take, but if they die at the same time or in quick succession:
- must have clear and convincing evidence a will beneficiary survived the decedent to take.
ii. spouses or domestic partners: community and quasi-community property is split half-half between each person’s estate
iii. joint tenants: property is divided among the joint tenants to their estates
iv. life or accident insurance: treated as if the insured survived the beneficiary
v. insurance beneficiary: beneficiary is deemed to be predeceased
a. look for alternative beneficiary
b. proceeds are paid to the insured’s estate and to residuary devisee if there are any, and if none, to insured’s heirs
c. if the insurance policy was paid for with community or quasi-community property, and there is a partnership, then half of the proceeds go to each spouse’s estate
- for intestate succession, an intestate heirs is deemed to have predeceased the decedent unless they survive the decedent by 120 hours
i. exception: 120 hour rule does not apply if property would escheat to the state
Succession issues - disclaimers
- disclaimer: an instrument a beneficiary uses to disclaim their interest
i. that beneficiary is treated as predeceased
ii. a disclaimed life estate accelerates the remainder interest
i. disclaimer requirements
a. signed writing by disclaimant
b. identifies decedent
c. describes the interest disclaimed
d. states the disclaimer and extent of it
e. filed within a reasonable time after disclaimant learns of their interest
i) reasonable if within 9 months after either: death of decedent or when interest becomes indefeasibly vested
ii) federal law: 9 months from decedent’s death or beneficiary’s 21st birthday
- a disclaimer may be made by a guardian, conservator, or representative on behalf of an infant, incompetent, or decedent
- estoppel prevents an interest from being disclaimed if the beneficiary has already accepted the property or its benefits
- the right to disclaim exists irrespective of any spendthrift clause or other limitation on the interest
- disclaimers can be used to defeat creditor’s claims, i.e. if the beneficiary would have to pay entire amount to a creditor
i. no disclaimer to defat a federal tax lien
Succession issues - Advancements and Satisfaction of Legacies
- advancement: an inter vivos gift made to a beneficiary that is to be deducted from any share the beneficiary inherits from the donor’s estate
- only for intestate shares; has no effect if decedent leaves a will
i. requirements
a. advancement must be in writing
ii. calculation
a. the amount of advancement is added back to calculate the net value of the estate
b. the recipient has their share deducted by the amount of the advancement
c. recipient does not have to return any deficiency if the advancement deduction exceeds their share of the estate
iii. if recipient predeceases the decedent, the advancement is ignored in calculating the share to be received by the recipient’s issue, unless otherwise provided
- legacies (ademption by satisfaction): an inter vivos gift to will beneficiaries
i. similar rules to advancements
ii. see ademption by satisfaction
Succession issues - prohibited beneficiaries
- slayers
a. felonious and intentional killing of the decedent (a final judgment is conclusive but a conviction is not necessary; a court may determine by a preponderance whether the killing was felonious and intentional)
ii. effects (killer and their issue do not take under the will or an insurance K)
a. killer treated as having predeceased the decedent
b. no benefits under will: no power of appointment, nomination as executor, etc.
c. no benefits under joint tenancy: if joint tenant is killed:
i) decedent’s joint tenancy interest is severed and passes as separate property
ii) beneficiary loses right of survivorship
d. no benefits under insurance: if beneficiary kills obligee or insured:
i) beneficiary is entitled to no benefit under the insurance policy, bond, or any other arrangement
e. no statutory recovery:
i) no property under the intestate succession statute
ii) not covered by statutory provisions for the protection of decedent’s family
iii) no property under statute for gifts in view of impending death
f. no quasi-community property given
2. persons who abuse or neglect elders or dependent adults cannot receive property from their estate, and are deemed to have predeceased the decedent
- aliens
i. California: no restrictions on aliens taking property
ii. common law: aliens could not inherit real property
