Relationships Flashcards
registered domestic partnerships
those registered as domestic partnerships before obergfell (2015) may not be considered as legally married
Common law spouse
forms an informal marriage, when a couple does not procure a license or participate in a solemnization process.
Punitive Spouse
- They have a good faith belief that they are lawfully married
- for some technical reason their marriage is not valid
Siblings may be
whole-blooded
halfblooded
genetic
or adopted
Uniform Parental Act: A child in the process of being adopted when one spouse dies is treated as…
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
Equitable adoption is traditionally based on
Express or implied promise to adopt
Listing a guardian of a child as the custodian of property allows
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)
Ancestors examples
parents, grandparents
States recognition of the legality of same sex marriages
all states must recognize and permit same sex marriages after the Obergefell case (2015)
What case made the states recognize same sex marriages
Obergfell (2015)
If not survived by descendent, parent, or descendant of a parent, who are you survived by
a grandparent
how do most jurisdictions treat fullblooded siblings vs. halfblooded siblings
equally
Class gift
gifts to an individuals “children” or “descendants” who proportionately share the property
if a will does not include the definitions of terms needed to be in the class, how do we define it?
definitions from state statutes
In general, if a child predeceases and has no surviving descendant…
no share is allocated to that family line, it is now a dead branch in the family tree
If there is a roadblock to marriage and it is removed and you already had a ceremony…
It is up to you to get married, need to have another ceremony even if you already had one
Uniform Parental Act: how divorce effects the parentage of a marital child
Still child of both
Nonmarital child
Child born to individuals who are not married at the time of the child’s birth and do not later get married
Can a child born out of wedlock inherit
Yes they may still inherit
When can or must the child establish parentage
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
Inheritance of a adopted child
- Inherits through the adoptive parent
- Typically cuts off inheritance rights of the child’s genetic family
Where parents of a minor often name a guardian of their child
A will
Where parents of a minor often name a guardian of their child
A will
a guardian needs what from the court
ongoing court supervision
Legally recognized relationships are decided by
state statutes
2 things that state statutes look at when legally recognizing relationships
- The person needs to survive the decedent to inherit the probate
- behavior of someone can affect their ability to inherit
Surviving Spouse
individual who is validly married to the decedent at the time of death
How someone is legally seen as a common law spouse
- the couple had the intent to be married
- the couple held themselves out as married
- have evidence (such as deeds, tax returns, joint accounts)
living in the same house and being a common law spouse
has to do more than just live in the same house to be considered a common law marriage
unmarried cohabitants
two people who were residing together but were unmarried
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…
Those deceased parents are deemed to be one deceased parent with a surviving descendant
Ancestral property: What if no surviving parents?
the property goes to the heirs of the deceased parents
Ancestral property: order of who inherits if there are no surviving parents
- spouse, descendants of parents
- descendants of parents
- grandparents
- grandparents descendants
Marital child
A child born during marriage, presumed to be the Child of each spouse
Uniform Parental Act: presumption of a child born during marriage
Parentage is presumed even if declared invalid
Uniform Parental Act: how long after the marriage is the presumption of parentage there
300 days
Uniform Parental Act: if child is born out of marriage and then the parents marry
The child becomes a marital child
Uniform Parental Act: marital presumption and same sex couples
Unclear sometimes
Uniform Parental Act: parentage of a new spouse and stepchild
-Marriage does not make the new spouse a parent
- new spouse must adopt the child
2 ways to establish parentage
- Child presumed to have genetic link to the child’s birth mother
- Medical testing
Adoption
Establishing parentage by legal decree
Many states and the Uniform Parental Act: a child who is adopted by the spouse of a genetic parent can…
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
Difference between adoption of an minor or an adult regarding inheritance
Many states: does not distinguish
Uniform Parental Act: does not distinguish for intestate inheritance but does for class gifts
A child not formally adopted may still adopt under
Equitable adoption ( also called informal or virtual adoption)
Equitable adoption is modernly based on…
If the parent held out the child as their own
Equitable adoption typically allows
A child to inherit from parent, but parent may not inherit from the child
To enter into a contract for adoption, there needs to be the presence of
A guardian of the person
A guardian of a child is also
The custodian of the child’s property
De facto parentage
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)
Element of a virtual adoption claim
Existence of an agreement between persons competent to contract for the disposition of the child
A decedent who cares for grandchildren. Formal and informal relationship and how it affects inheritance.
- Informal parent child relationship
- Formal grandparent child relationship
- It doesn’t if died intestate, estate will likely go to the parent of the child
UPC: when a claim of de facto parentage of a child must arise
must be brought by the de facto parent when the child is alive and under 18
De facto parent
A person who has adjudicated to be a parent of a child under the applicable de facto parentage of a child
UPC: an individual claiming to be a de facto parent must establish what 7 things by clear and convincing evidence?
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
De facto parentage can be used for
Succession purposes including intestate succession and class gifts
De facto parentage helps recognize that a child may have
More then 2 parents and 2 sets of grandparents
Foster children and inheritance
Equitable adoption must apply for them to inherit from their foster parents
Foster child and parentage for intestate succession
Not a method for establishing parentage for intestate succession
Posthumous child
A child conceived before the death of a person, is born after death.
Can a posthumous child be an heir
Yes can be a heir
Posthumously Conceived Child
Conceived after the decedents death using stored genetic material and is born after the decedents death
UPC: Posthumous child, and parental status of decedent (time limitation)
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
To get social security benefits, the child must be
An intestate heir under state law where the child is born
UPC: Posthumous child, and parental status of decedent (decedents intent)
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
When can parties in a marriage alter their inheritance rights at the time of death
before or after marriage
An alteration of inheritance rights between parties of a marriage can be done through
- A complete waiver of rights
- An expansion of inheritance rights
OR
otherwise a modification
Modification of inheritance rights between parties of a marriage:
before married is called a
- premarital
- prenuptuial
- ante-nuptual agreement
Modification of inheritance rights between parties of a marriage:
Created during marriage when no divorce proceedings are contemplated are called
Marital or post-nuptial agreement
Modification of inheritance rights between parties of a marriage:
Divorce settlement 4 requirements
- be in writing and signed
- have consideration
- agreement freely entered into by parties
- most states: full disclosure of assets
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:
- before or after the childs birth, signed a record that, considering all the fact and circumstances, evidences the individuals concent,
OR - 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.
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,
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
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
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
120 hours after birth
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
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
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
adoption is subsequently granted
