Intestate Succession Flashcards
How do intestacy questions usually arise?
Partial or total failure of will
What happens to community property in intestacy?
What about quasi-CP?
RULE –> decedent’s 1/2 interest in CP and quasi-CP will go automatically to surviving spouse.
NOTE –> other spouse already owns other 1/2
NOTE –> this rule applies to spouses and DP’s
With regards to Separate Property, what does the surviving spouse or DP take?
In general –> 1/3 or 1/2 depending on survivors
HOWEVER –> spouse takes ALL SP if decedent leaves no issue, parent, sibling, or issue of deceased siblings
With regards to SP that does not pass to the spouse or DP, but to the issue - how is it taken?
If all surviving issue are equal degree of kinship –> they take per capita
If unequal –> property passes per capita with right of representation. Under this method, the property is divided in equal shares at the first gen in which there are living takers. The shares of each deceased person are passed down to his issue.
What happens if a will/trust calls for distribution “per stirpes”?
- divided at level of decedent’s children, regardless of whether there are any living takers
What happens if a will/trust calls for distribution to issue without specifying?
Per capita with representation
What is the rule w regards to parents other heirs?
Parents and more collateral kin NEVER inherit IF decedent is survived by issue,
If decedent is NOT survived by issue, the share not passing to surviving spouse or DP passes to decedent’s PARENTS
If no parent survives, that portion passes to ISSUE of decedent’s parents (decedents siblings, and issue of deceased siblings).
If none of the above survive, it passes:
- decedent’s grandparents or their issue
- if none, issue of predeceased spouse or DP
- if none, to decedent’s next of kin
- if none, parents of predeceased spouse or DP,
- if none, property escheats to state
In intestacy, what is the rule w regards to posthumously born relatives?
If they were CONCEIVED prior to death, but born after, they are treated as if they were born during life of decedent
In intestacy, what is the rule w regards to posthumously conceived children?
If child of decedent is CONCEIVED and BORN after decedent’s death, she is treated as if she was born during decedent’s lifetime AFTER execution of all testamentary instruments IF:
- Decedent AUTHORIZED in a SIGNED AND DATED WRITING the use of his genetic material;
- The person designated to control genetic material gave WRITTEN NOTICE, WITHIN 4 months of the issuance of decedent’s death cert, to person who has control of decedent’s property
- Child was conceived within 2 years of issuance of decedent’s death cert
How are adopted people treated in intestacy?
Do adopted people inherit from their natural parents?
With regards to ADOPTIVE parents –> As regular children
EFFECT —> child inherits from them, they inherit from child
W regards to NATURAL parents –> generally do not inherit:
EXCEPTIONS —>
1. adoption is by spouse or DP of either natural parent or
2. after death of either natural parent or surviving spouse or DP of that parent
How are step-children treated in intestacy?
Generally —> no inheritance rights unless adopted
EXCEPTIONS —> doctrine of adoption by estoppel
(1) legal custody is gained from unfulfilled agreement to adopt; OR
(2) foster parents confused guardianship for adoption
(3) SOMETIMES:
- if Held out to world as child; OR
- Adopted as minor, kept relationship through lives of parents, would have adopted if not for legal barrier
What is the rule with regards to non-marital children in intestacy?
Children inherit from their natural parents, regardless of marital status
What is the rule w regards to relationship to mother?
- Established by proof she gave birth to child
2. If someone uses their own egg w surrogate and husband’s sperm, egg donor is mom
What are the three methods of establishing paternity for purposes of intestacy?
- Established by presumption (4)
- Established by holding out child as his own
- Established by judgment
What is the rule w regards to establishing paternity by presumption?
General Rule —> paternity is established by presumption IF:
- Father and mother were married and child was born during marriage or within 300 days after termination;
- Father and mother ATTEMPT to lawfully marry BEFORE child’s birth (even if marriage is voidable), and child was born during attempted marriage or within 300 days thereafter
- Father and mother ATTEMPT to lawfully marry AFTER child’s birth (even if marriage is voidable), and father is:
(i) Named on birth certificate; OR
(ii) Promised or ordered to pay child support
4.Father received child in his home and held him out as his natural child
