Intestate Succession Flashcards
Intestate Succession: Requirements
- decedent left no valid will;
- will does not complete disposition of the estate (“Partial intestacy”); or
- after challenge, will is denied probate
Community Property: Survived by Spouse and Descendants Only of Same Spouse (one marriage rule)?
all goes to the surviving spouse
Community Property: Survived by Spouse and Descendants, at least one of whom is not the descendant of the spouse?
Spouse retains one half of decedent’s interest.
ALL descendants (including those from current spouse) take half, per capita with representation
Community Property- Survived by Spouse and NO Descendants
all goes to surviving spouse
Separate Personal Property- Survived by Spouse and Descendants
1/3 to surviving spouse
2/3 to children (descendants) or their descendants
Separate REAL Property- Survived by Spouse and Descendants
- 1/3 life estate to spouse
- 2/3 outright ownership to descendants (or their descendants), plus the 1/3 remainder on the life estate
Separate Real Property: Not survived by Spouse, but Survived by Descendants
entire estate goes to descendants (and their descendants)
Separate REAL Property- Survived by Spouse and and NO Descendants
1/2 to surviving spouse
1/2 in fee simple goes to parent(s) or descendants of parents (if none, all goes to surviving spouse)
Separate PERSONAL Property- Survived by Spouse and and NO Descendants
all goes to surviving spouse (even if decedent has parents, close kin, etc.)
Separate PERSONAL Property- Not survived by Spouse or descendants, but Survived by ParentS
one half to each parent
Separate PERSONAL Property- Not survived by Spouse or descendants, but Survived by Parent
one half to parent and one half to brothers or sisters or their descendants
Intestate Succession: Bad Daddy Rule
parent cannot inherit from or through a child if there is clear and convincing evidence that parent
(i) abandoned and failed to support the child
(ii) knowingly abandoned and failed to support child’s mother during her pregnancy; or
(iii) was criminally responsible for the death or serious injury of a child
Not survived by Spouse, descendants, or parents/descendants of parents
Keep going on until you find descendants.
1/2 to maternal grandparents and their descendants and 1/2 to paternal grandparents and their descendants
Descendants take Per Capita with Representation
Property divided into equal shares at the first generation there are living takers
Each person at that level takes a share and a share of the deceased person at that level passes to her descendants per capita (instead of per stirpes) by representation.
Non-marital Children (Wedlock)
Mother and her kin: Nonmarital child has full inheritance rights
Father and her kin: Nonmarital child has no inheritance rights unless:
(a) paternity is assumed by family code
(b) father executes sworn statement acknowledging paternity
(c) paternity is established in paternity or probate proceeding
“paternity is assumed”
- child was born during (or within 300 days after) marriage;
- during the first two years of the child’s life, the man resided with the child and represented to others that the child was his; or
- the parties married after birth of the child and the man voluntarily asserted his paternity
Inheritance Rights of Adopted Children
Adopted child treated same way as natural child.
Two-way street: adopted child inherits through parents and parent can inherit from/through adopted child
One-way street: adopted child can inherit from/through natural parent (unless inheritance rights were expressly terminated) but natural parent cannot inherit from/through adopted child
Intestate Succession: Inheritance Rights of Adopted Adults
Person adopted as adult may not inherit through natural parents or vice versa
Intestate Succession: Inheritance from Step Parents or Foster Parents
Generally, children do not inherit through step-parents or foster parents unless they are adopted by adoption by estoppel (take custody of child with parent’s agreement but never carry out the full adoption).
If adoption by estoppel, it is a one-way street. Parents cannot inherit from child.
Posthumous Born Children
To receive right of inheritance, child must be born before, or in gestation (300 days) at the instetate’s death and survived instetate by at least 120 hours.
Assisted Reproduction
Unless consented to by donor, person considered to be in gestation at the time of intestate’s death only if the insemination or implantation occurred before the intestate’s death
Wills and Intestate Succession: 120-hour rule
If person died 120 hours or before after the decedent, treat it like the person predeceased.
If it can’t be determined, default is that the person did not survive 120 hours.
- applies to wills and intestacy
120-hour rule and Community Property
If spouses die within 120 hours of each other, 1/2 of all community property is distributed as if Spouse A had survived 120 hours after and 1/2 is distributed as if the Spouse B had survived 120 hours after
120-hour rule and Other Contexts
Applies to joint bank accounts, survivorship estates of real/personal property, and life insurance proceeds
