Intestate succession

Question 1

Community property

Answer 1

Community property rules do not apply on the MEE unless so specified.

Under the rules, the surviving spouse takes all of the community property:

(1) half of the community property and
(2) half of the decedent’s community property and quasi-community property.

Question 2

Surviving spouses

Answer 2

(1) Common law:

To be entitled to take under an intestacy statute, the surviving spouse must have been legally married to the decedent.

(2) Uniform Probate Code:

To take by intestacy:

(a) The surviving spouse must be legally married to the decedent at the time of death; and
(b) There must be clear and convincing evidence that she survived the decedent by 120 hours.

Question 3

Surviving spouses: putative spouses

Answer 3

Even if a marriage is not valid, as long as one party believes in good faith in its validity—e.g., not knowing that the other party is married to someone else—the spouses are termed putative and qualify as spouses for inheritance purposes.

Question 4

Issue

Answer 4

Issue refers to lineal descendants of the testator, including children, grandchildren, and great-grandchildren.

Question 5

Issue: adoption

Answer 5

Adoption curtails all inheritance rights between the natural parents and the child.

Under the UPC and the majority of jurisdictions, adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions.

Question 6

Issue: non-marital children

Answer 6

It is unconstitutional to deny inheritance rights to nonmarital children if paternity has been established during the father’s lifetime.

(1) At common law:

If a child was born out of wedlock, then she could not inherit from her natural father.

(2) Modern rule:

The modern trend adopted by most jurisdictions is that an out-of-wedlock child cannot inherit from her natural father unless:

(a) The father subsequently married the natural mother; or
(b) The father held the child out as his own and either received the child into his home or provided support; or
(c) Paternity was proven by clear and convincing evidence after the father’s death; or
(d) Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence.

Question 7

No surviving spouse or issue: common law

Answer 7

At common law: If no surviving spouse or issue exist, then the property may be distributed to:

(1) The decedent’s ancestors—e.g., parents, grandparents, great-grandparents—and then
(2) More remote collateral relatives—i.e., those related to the decedent through a common ancestor, such as siblings, cousins, aunts, and uncles.

Question 8

No surviving spouse or issue: Uniform Probate Code

Answer 8

If there is no surviving spouse or descendant, then the estate passes in the following order to the individuals designated below who survive the decedent:

• To the decedent’s parents equally if both survive, or to the surviving parent;
• Then to the descendants of the decedent’s parents (siblings);
• Then the estate passes to the decedent’s maternal and paternal grandparent, one-half to each, or to the descendants of the decedent’s maternal and paternal grandparents if the grandparents are deceased (cousins);
• Then the entire estate passes to the decedent’s nearest maternal and paternal relative (more-remote cousins); and
• If there are no surviving relatives, then the estate escheats to the state.