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Wills & Trusts > Relationships > Flashcards

Relationships Flashcards

1
Q

registered domestic partnerships

A

those registered as domestic partnerships before obergfell (2015) may not be considered as legally married

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2
Q

Common law spouse

A

forms an informal marriage, when a couple does not procure a license or participate in a solemnization process.

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3
Q

Punitive Spouse

A
  1. They have a good faith belief that they are lawfully married
  2. for some technical reason their marriage is not valid
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4
Q

Siblings may be

A

whole-blooded
halfblooded
genetic
or adopted

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5
Q

Uniform Parental Act: A child in the process of being adopted when one spouse dies is treated as…

A

Adopted by the deceased spouse if the adoption is later granted to the surviving parent
- few states allow the child to inherit through their birth parent in this situation although the parent cannot inherit through the child

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6
Q

Equitable adoption is traditionally based on

A

Express or implied promise to adopt

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6
Q

Listing a guardian of a child as the custodian of property allows

A

Flexibility in managing property, which subjects them to managing the property as an fiduciary

cts may appt a guardian of the property (instead of a custodian)

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7
Q

Ancestors examples

A

parents, grandparents

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8
Q

States recognition of the legality of same sex marriages

A

all states must recognize and permit same sex marriages after the Obergefell case (2015)

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9
Q

What case made the states recognize same sex marriages

A

Obergfell (2015)

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10
Q

If not survived by descendent, parent, or descendant of a parent, who are you survived by

A

a grandparent

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11
Q

how do most jurisdictions treat fullblooded siblings vs. halfblooded siblings

A

equally

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12
Q

Class gift

A

gifts to an individuals “children” or “descendants” who proportionately share the property

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13
Q
A
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14
Q

if a will does not include the definitions of terms needed to be in the class, how do we define it?

A

definitions from state statutes

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15
Q

In general, if a child predeceases and has no surviving descendant…

A

no share is allocated to that family line, it is now a dead branch in the family tree

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16
Q

If there is a roadblock to marriage and it is removed and you already had a ceremony…

A

It is up to you to get married, need to have another ceremony even if you already had one

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17
Q

Uniform Parental Act: how divorce effects the parentage of a marital child

A

Still child of both

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18
Q

Nonmarital child

A

Child born to individuals who are not married at the time of the child’s birth and do not later get married

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19
Q

Can a child born out of wedlock inherit

A

Yes they may still inherit

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20
Q

When can or must the child establish parentage

A

Depends on state. NY is before punative father’s death.CA needs clear and convincing evidence that the father held the child out as their own

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21
Q

Inheritance of a adopted child

A
  1. Inherits through the adoptive parent
  2. Typically cuts off inheritance rights of the child’s genetic family
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22
Q

Where parents of a minor often name a guardian of their child

A

A will

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23
Q

Where parents of a minor often name a guardian of their child

A

A will

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24
Q

a guardian needs what from the court

A

ongoing court supervision

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25
Q

Legally recognized relationships are decided by

A

state statutes

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26
Q

2 things that state statutes look at when legally recognizing relationships

A
  1. The person needs to survive the decedent to inherit the probate
  2. behavior of someone can affect their ability to inherit
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27
Q

Surviving Spouse

A

individual who is validly married to the decedent at the time of death

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28
Q

How someone is legally seen as a common law spouse

A
  • the couple had the intent to be married
  • the couple held themselves out as married
  • have evidence (such as deeds, tax returns, joint accounts)
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29
Q

living in the same house and being a common law spouse

A

has to do more than just live in the same house to be considered a common law marriage

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30
Q

unmarried cohabitants

A

two people who were residing together but were unmarried

31
Q

UPC Heirs than Surviving Spouse

If no surviving spouse or descendant… and is survived by 1+ parent…

To determine whether a deceased parent of the decedent is treated as having a surviving decedent:
-2+ deceased parents have the same surviving descendants
- none of these parents have other surviving descendants
-THEN…

A

Those deceased parents are deemed to be one deceased parent with a surviving descendant

32
Q

Ancestral property: What if no surviving parents?

A

the property goes to the heirs of the deceased parents

33
Q

Ancestral property: order of who inherits if there are no surviving parents

A
  1. spouse, descendants of parents
  2. descendants of parents
  3. grandparents
  4. grandparents descendants
34
Q

Marital child

A

A child born during marriage, presumed to be the Child of each spouse

35
Q

Uniform Parental Act: presumption of a child born during marriage

A

Parentage is presumed even if declared invalid

36
Q

Uniform Parental Act: how long after the marriage is the presumption of parentage there

A

300 days

37
Q

Uniform Parental Act: if child is born out of marriage and then the parents marry

A

The child becomes a marital child

38
Q

Uniform Parental Act: marital presumption and same sex couples

A

Unclear sometimes

38
Q

Uniform Parental Act: parentage of a new spouse and stepchild

A

-Marriage does not make the new spouse a parent
- new spouse must adopt the child

39
Q

2 ways to establish parentage

A
  1. Child presumed to have genetic link to the child’s birth mother
  2. Medical testing
40
Q

Adoption

A

Establishing parentage by legal decree

41
Q

Many states and the Uniform Parental Act: a child who is adopted by the spouse of a genetic parent can…

A

Inherit from the child’s genetic and adoptive parent

(called the stepparent exception)

some states only apply when a parent dies but not for divorce

42
Q

Difference between adoption of an minor or an adult regarding inheritance

A

Many states: does not distinguish
Uniform Parental Act: does not distinguish for intestate inheritance but does for class gifts

43
Q

A child not formally adopted may still adopt under

A

Equitable adoption ( also called informal or virtual adoption)

44
Q

Equitable adoption is modernly based on…

A

If the parent held out the child as their own

44
Q

Equitable adoption typically allows

A

A child to inherit from parent, but parent may not inherit from the child

45
Q

To enter into a contract for adoption, there needs to be the presence of

A

A guardian of the person

46
Q

A guardian of a child is also

A

The custodian of the child’s property

47
Q

De facto parentage

A

Give parentage to individuals who have created a relationship that functions as a parent child relationship without genetics or adoption
( UPC and Uniform probate code)

48
Q

Element of a virtual adoption claim

A

Existence of an agreement between persons competent to contract for the disposition of the child

49
Q

A decedent who cares for grandchildren. Formal and informal relationship and how it affects inheritance.

A
  1. Informal parent child relationship
  2. Formal grandparent child relationship
  3. It doesn’t if died intestate, estate will likely go to the parent of the child
50
Q

UPC: when a claim of de facto parentage of a child must arise

A

must be brought by the de facto parent when the child is alive and under 18

50
Q

De facto parent

A

A person who has adjudicated to be a parent of a child under the applicable de facto parentage of a child

51
Q

UPC: an individual claiming to be a de facto parent must establish what 7 things by clear and convincing evidence?

A

1) individual resided in the child’s home for a significant time
2) they consistently engaged in caregiving
3) no financial compensation expected
4) a bonded and dependent relationship between them and the child was established
5) they held the child out as their own
6) another of the child’s parent fostered or supported the bond
7) continuing the relationship is in the child’s best interest

52
Q

De facto parentage can be used for

A

Succession purposes including intestate succession and class gifts

53
Q

De facto parentage helps recognize that a child may have

A

More then 2 parents and 2 sets of grandparents

54
Q

Foster children and inheritance

A

Equitable adoption must apply for them to inherit from their foster parents

55
Q

Foster child and parentage for intestate succession

A

Not a method for establishing parentage for intestate succession

56
Q

Posthumous child

A

A child conceived before the death of a person, is born after death.

57
Q

Can a posthumous child be an heir

A

Yes can be a heir

58
Q

Posthumously Conceived Child

A

Conceived after the decedents death using stored genetic material and is born after the decedents death

59
Q

UPC: Posthumous child, and parental status of decedent (time limitation)

A

Treated as the child of the decedent if the embryo was in utero no later than 36 months after the death or born no later than 45 months after the decedents death

59
Q

To get social security benefits, the child must be

A

An intestate heir under state law where the child is born

60
Q
A
60
Q

UPC: Posthumous child, and parental status of decedent (decedents intent)

A

for the child to be treated as the decedents child, the decedent must have either signed a record giving consent for the assisted reproduction
OR
Must have clear and convincing evidence that the decedent intended to be treated as the parent of the child

61
Q

When can parties in a marriage alter their inheritance rights at the time of death

A

before or after marriage

62
Q

An alteration of inheritance rights between parties of a marriage can be done through

A
  1. A complete waiver of rights
  2. An expansion of inheritance rights
    OR
    otherwise a modification
63
Q

Modification of inheritance rights between parties of a marriage:
before married is called a

A
  1. premarital
  2. prenuptuial
  3. ante-nuptual agreement
64
Q

Modification of inheritance rights between parties of a marriage:
Created during marriage when no divorce proceedings are contemplated are called

A

Marital or post-nuptial agreement

65
Q

Modification of inheritance rights between parties of a marriage:
Divorce settlement 4 requirements

A
  1. be in writing and signed
  2. have consideration
  3. agreement freely entered into by parties
  4. most states: full disclosure of assets
66
Q

UPC 120 child cociev by assis repro other than child born to ges carrier

Parent child-relationship with another:
- A parent child relationship between a child of assisted reproduction and an individual other then the birth mother who consisted to assissted reproduction by the birth mother with intent to be treated as the other parent or the child
- Consent to the assisted reproduction by the birth mother with the intent to be treated as another parent of the child if it is established if the individual:

A
  1. before or after the childs birth, signed a record that, considering all the fact and circumstances, evidences the individuals concent,
    OR
  2. in the absense of the signed record under (1)
    - functioned as a parent of the child no later then 2 years after the childs birth;
    - is intended to function as a parent of hte child is no later than two years after the child’s birth but was prevented from carrying out that intent by death, capacity, or other circumstances, OR
    - intended to be treated as a parent of a posthumonously concieved child, if that intent is established by clear and convincing evidence.
67
Q

Once we establish that the post-humoneously conceived child should be treated as the child of the deceased father, there is a question whether the child is ommited to take under the trust
- The right to take turns on the date of

A

the gradmothers death, not the fathers,

68
Q

Once we establish that the post-humoneously conceived child should be treated as the child of the deceased father, there is a question whether the child is ommited to take under the trust
- The right to take turns on the date of the gradmothers death, not the fathers
- therefore the UPC

A

does not exclude the post humoneously concieved child from the class even through the last child was not born until more then 5 years (45 months) after the father passed away

69
Q

UPC 705 class gifts construed to accord with intestate succession

the following rules apple for purposes of the class-closing rules:
1. A child in uterus at a particular time is treated as living at the time the child lives…

To do with child concieved by ass. repro other then gastational carrier

A

120 hours after birth

70
Q

UPC 705 class gifts construed to accord with intestate succession

the following rules apple for purposes of the class-closing rules:
2. If a child of assisted reproduction or a gastational child is concieved posthumonosly and the distribution date is the deceased parents death, the child is treated as living on the distribution date if the child lives

To do with child concieved by ass. repro other then gastational carrier

A

lives 120 hours after birth and was in vtero not later then 36 months after the deceased parents death or born not later then 45 moths after the deceased parents death

71
Q

UPC 705 class gifts construed to accord with intestate succession

the following rules apple for purposes of the class-closing rules:
An individual who is in the process of being adopted when the class closes is treated as adopted when the closes is treated as adopted when the class closes if the

To do with child concieved by ass. repro other then gastational carrier

A

adoption is subsequently granted

Wills & Trusts (26 decks)

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