Wills-Intestacy:Distribution-DWB Flashcards
Typical
Intestate
Distribution
Scheme
- Surviving spouse
- Issue
- Parents
- Issue of parents
- Grandparents
- Issue of grandparents
- Next of kin
- Escheats to State
Surviving Spouse
- Legal Spouse
- Putative Spouse
- Common Law Spouse
No cohabitant
California has separate laws which apply identical rules to domestic partners.
Typical
Spousal
Share
- 100% if no surviving issue, parents, or issue of parents
- 50% if one issue or parents or their issue
- 33% if more than one issue
UPC
Spousal
Share
- 100% if no issue, parents, parents’ isue, or if all issue are also surviving spouse’s issue
- $300k + 75% if no issue but parents or their issue
- $225k + 50% if survivor has separate issue
- $150 + 50% if decedent has separate issue
California
Spousal
Share
Community Property
- Decedent’s 1/2 of community property
Individual Property
- 100% if no issue, parent, brother, sister, or issue thereof
- 1/2 if one child or their issue, or parents or their issue
- 1/3 if more than one child or their issue
Per Stirpes
- Devide evenly at first generation of descendants
- Drop by bloodline thereafter
Per Capita with Representation
- Divide evenly between survivors and predeceased with issue at first generation with survivors.
- Drop by bloodline thereafter.
Per Capita at Each Generation
1) Divide evenly between surviving descendants and decendants with surviving issue.
2) “Pool” shares of predeceased descendants with surviving issue
3) Divide “pool” evenly at next generation in same manner, excluding descendants of previous takers.
4) Repeat 2 & 3 as necessary
Intestate
Distribution
to Issue
- Per stirpes
- (common law)
- Per capita with representation
- (california, majority)
- Per capita at each generation
- (UPC)
Intestate Distribution
Ancestors
and
Collateral Relatives
- Parentelic Approach
- Degree of Relationship Approach
- Degree of Relationship with Parentelic Tiebreaker
Parentelic Approach
- Count ‘collateral lines’ up to the nearest common ancestor.
- Distribute among surviving kin and surviving issue of predeceased kin per appropriate issue distribution scheme.
Degree of Relationship
- Determine degree of relationship by counting number of direct ancestor-descendant relationships between decedent and beneficiary. (Or count relatives between but do not count decedent)
- Distribute among all surviving kin at closest degree with surviving kin
Degree of Relationship with Parentelic Tiebreaker
Apply parentelic approach to multiple survivors of equal degree.
California Intestate Distribution Scheme
- Spouse,
- Issue, by PCwR,
- Parents equally or issue by PCwR
- Grandparents equally or issue by PCwR
- Issue of Predeceased Spouse by PCwR
- Next of kin by DoRwPT
- Parents of predeceased spouse or issue by PCwR
Adoption
Generally, adoption creates a relationship between the adoptive parnet and the adopted child for the purpose of each inheriting from and through the other. The relationship between the natural parents (or the natural parent of the same gender as the adoptive parent) and the child is partially severed in such a way that such parent (s) may not inherit from or through the child, but the child may still inherit from and through their natural parent(s).
Bastards
Where parents are unmarried, general rule is that child inherits from and through natural parents.
Natural parents must acknowledge and support the child to inherit from and through the child.
Survial Requirement
and
Simultaneous Death
All jurisdictions have a requirement that a beneficiary survive the decedent. The various simultaneous death provisions apply to determine survival.
- Survive by a millisecond (CL)
- 120 Hr rule (Majority, UPC)
- Clear and convincing evidence (CA, Minority)
Advancement
and
Satisfaction
At common law, inter vivos gifts to heirs and beneficiaris constituted advancement of inheritance through intestacy or satisfaction of gifts under a will.
Modernly, in both cases, an inter vivos gift is presumed not to be an advancement or satisfaction of a gift absent intent expressed in a contemporaneous writing by the testator or an acknowledgment in writing by the beneficiary.
Effect
of
Homicide
on
Inheritance
Where a taker or beneficiary kills the decedent intentionally or feloniously (murder & intentional manslaughter but not negligent manslaughter), such person is treated as having predeceased the decedent.
Jurisdictions are split as to whether such a person’s issue is also disinherited.
Disclaimer
A taker or beneficiary may disclaim their interest in their intestate share of decedent’s estate or a gift under decedent’s will. In such a case, that person is treated as having predeceased the decedent for the purposes of distribution. The applicable anti-lapse or class gift doctrines apply.
