Pg 4 Flashcards
What are the things that survival applies to?
Intestacy, wills, trusts, life insurance, joint tenancy
What is survival?
Unless otherwise provided, if title to property depends on the priority of death, and it cannot be established by clear and convincing evidence that one person survives the other, then the property of each is administered as if that person survived the other.
What is the simultaneous death act?
When a married couple both dies simultaneously, the law assumes that each pre-deceased the other. This treats each one’s estate like they had no surviving spouse. The burden is then on the claimant to show that they survived the other.
What are the elements of survival under the simultaneous death act?
- must show by clear and convincing evidence that one survived over the other person
– must have survived at least five days or 120 hours (from 1999 onward)
The elements for survival only apply to what type of law?
Intestacy because other “at death transfers“ do not often have a 120 hour requirement
Before 1999 what was the rule with regard to survival?
You only needed sufficient evidence of who died first (there was no 5 day/120 hour rule)
If under survival a person fails to survive the decedent by 120 hours, what is the presumption under intestacy?
That he died before the decedent.
If a will or some other instrument specifies how long you have to survive the decedent in order to take under the will, what happens if you don’t?
You don’t take under the will
If an insured person and a beneficiary under that policy both die and it cannot be shown by clear and convincing evidence that the beneficiary survived the insured, what happens?
The policy is administered as if the insured survived the beneficiary
If property is held by two joint tenants and both die, but it cannot be shown by clear and convincing evidence that one survived the other, what happens?
The property is administered half as if one joint tenant survived and half as if the other joint tenant survived. This basically means that the law treat this as a tenancy in common and each gets a divisible half interest in the property.
If a husband and wife both die leaving quasi-community property or community property and it cannot be shown by clear and convincing evidence that one spouse survived the other, what happens?
Half of the community property is administered as if one spouse survived and the other and half is administered as if the other spouse survived. So the court essentially separates the property into half interests and half goes to the one spouse and his heirs and a half goes to the other spouse and her heirs.
What are the statutory or common law bars to succession with regard to survival?
These are four different categories that could stop someone from inheriting even though they were in a position to take. It treats that person as predeceasing the decedent.
What are the four categories of statutory or common law bars to succession under survival?
- slayers
– other areas that are deemed unworthy to inherit because of wrongdoing
– disclaimer where the heir voluntarily relinquished his right to inherit - advancements
What is involved in the bar to succession for slayers?
A person that feloniously and intentionally killed the decedent is not entitled to any property or benefit under his will, or any property under intestate succession.
What is required to prove that someone was a slayer in order to bar them from taking in succession?
There must be a final judgement of conviction of a felonious and intentional killing. This must be a criminal conviction that is proved beyond a reasonable doubt, or if the court determined by a preponderance of the evidence that the killing was felonious and intentional.
What are things that wouldn’t be included to bar a slayer from taking from the decedent’s estate?
Involuntary manslaughter or self-defence because these are not felonious or intentional
What is the rationale behind the bar on a slayer taking from the decedent’s estate?
Public policy cannot allow one party to profit from killing another. This disincentivizes people from killing others to get their property and doesn’t put them in any worse position than they were in before the killing.
What are the two different approaches to the slayer statute if someone kills another person and is slated to take from their state?
– constructive trust
- slayer statutes
What is involved in the constructive trust approach with regard to slayers?
If the jurisdiction has no slayer statute, courts will create a constructive trust, which is an equitable remedy, to avoid unjust enrichment. The court tells the slayer that he is holding the property like a trustee and that he has legal title, but that he has a duty to turn the property over to the rightful owner.
What is involved in slayer statutes?
The killer is deemed to have pre-deceased the decedent. You just skip right over them and give the property to the next person in line
What happens if a killer and his victim hold property as joint tenants?
That creates a severance of the interest so that the decedent’s share passes as his property and the slayer has no right of survivorship. It essentially converts a joint tenancy into a tenancy in common and extinguishes that right of survivorship.
What happens if a slayer was the named beneficiary of a life insurance policy for the decedent?
If the slayer feloniously and intentionally killed the decedent, he is not entitled to any benefit under the policy and it becomes payable as though he predeceased the decedent
What is involved in the statutory bar to succession for other areas that are deemed unworthy to inherit because of wrongdoing?
Any person will be treated as if they died before the decedent if it can be shown by clear and convincing evidence that they were liable for physical abuse, neglect or financial abuse if the decedent was an elder or dependent adult. Some states include a parent that abandoned, abused, or neglected his child (cannot inherit from his child).
What is involved in the statutory or common law bar to succession for disclaimer?
An heir can voluntarily relinquish his right to inherit by saying he doesn’t want his share in order to avoid taxes or creditors. If he does this, his share will pass as if he predeceased the decedent. He just has to file a disclaimer in writing and signed within a reasonable time after he gets knowledge of his interest. This is presumed timely if filed within nine months.
