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INTESTACY

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					                                        INTESTACY


I.    Introduction

      A. Distribution of decedent’s (D’s) probate property that is not disposed of by will is
         governed by the descent and distribution, or intestacy, statutes of the state in which the
         decedent is domiciled at the time of his death (domiciliary probate).
      B. Real property must be probated in state where it is located (ancillary probate).

II.   Determination of shares to be distributed to D’s heirs

      A. Surviving Spouse’s (SS’s) Share - UPC §2-102
         1.      SS receives 100% of D’s estate if
                     a.       D leaves no surviving descendants or parents; or
                     b.       All of D’s surviving descendants are descendants of SS and SS
                              has no other descendants who survive D.
         2.      SS receives the first $200,000 plus 75% of the balance (the amount in excess
                 of $200,000) of D’s estate if D leaves a surviving parent but no surviving
                 descendant
         3.      SS gets the first $150,000 plus 50% of the balance if all D’s surviving
                 descendants are SS’s descendants and SS has at least one surviving
                 descendant who is not D’s descendant
         4.      SS gets the first $100,000 plus 50% of the balance if D has at least one
                 surviving descendant who is not a descendant of the SS.

      B. Shares of Other Heirs – UPC §2-103 – The part of the estate that does not pass to the
         SS (which would be all of the estate if D were unmarried at the time of his death)
         passes as follows:
              1.     To D’s descendants by representation
              2.     If no surviving descendants, to D’s parents equally if both survive, or all of
                     the remainder if only one surviving parent
              3.     If no surviving descendant or parent, to descendants of D’s parents or
                     either one of D’s parents, by representation
                        Note: because the heir only has to be a descendant of one of the
                        parents, the UPC allows relatives of the half-blood to receive a share
                        under intestacy. For example, if Sarah Brown were to die intestate and
                        she had no surviving spouse, descendants, or parents (Howard and
                        Wendy), but Stephanie Brown, her sister, and Michael Walker, her half-
                        brother, survived her, her estate would be split equally between
                        Stephanie and Michael.
              4.     If no surviving descendant, parent, or descendant of parent, but D is
                     survived by at least one grandparent or a descendant of a grandparent:
                   a.          50% passes to D’s
                            1.        paternal grandparents equally if both survive; or
                            2.        to surviving paternal grandparent if only one survives; or
                            3.        if neither paternal grandparent survives, to the
                                      descendants of the paternal grandparents or either
                                      paternal grandparent, by representation
                      b.          50% passes to D’s
                                1.       maternal grandparents equally if both survive; or
                                2.       to surviving maternal grandparent if only one survives; or
                                3.       if neither maternal grandparent survives, to the
                                         descendants of the maternal grandparents or either
                                         maternal grandparent, by representation
                  c.       If there are no surviving grandparents or descendants of the
                           grandparents on one side of the family (for example, assume that there
                           are no paternal grandparents and no descendants of the paternal
                           grandparents who survive the D), the 50% of the D’s estate designated
                           for that side of the family goes to the other side, in this case, to the
                           maternal grandparents or their descendants, in the manner specified
                           above. In effect then, all 100% would go to the maternal grandparents
                           or their descendants by representation.
          C.      Escheat – UPC §2-105
                  If there are no surviving heirs to whom the estate can be distributed after
                  applying the two UPC sections above, the intestate estate passes to the state
                  (or is said to escheat to the state).
          D.      Author notes:
                  1.       If SS takes all because all of D’s and SS’s descendants who survive D
                           are mutual descendants [see UPC 2-102(1)(ii)], then no guardian has to
                           be appointed for D’s minor children to manage property received from
                           D’s estate. This is an advantage over the laws of most states which
                           give the SS less than 100% if D left any descendants.
                  2.       Intestate succession laws must bear a rational relationship to a
                           permissible state objective to satisfy Fourteenth Amendment equal
                           protection requirements.
          E.      Review Problems 1 and 2 on pages 75-76.

III.   Uniform Simultaneous Death Act (USDA)
       A. Original version found in Janus v. Tarasewicz on page 82.
          If title to property depends upon the order of two persons’ deaths, when there is no
          sufficient evidence of the order of their deaths, the property of each person shall be
          disposed of as if he had survived. Or as the author states it, the beneficiary will be
          treated as having died before (having predeceased) the benefactor.
       B. With respect to life or accident insurance policies, if there is no sufficient evidence as to
          the order of the deaths of the insured and the beneficiary, the beneficiary is treated as
          if he had predeceased the insured.
       C. If two joint tenants die simultaneously, half will distributed as if the first joint tenant
          survived and half will be distributed as if the second joint tenant survived.
       D. Standard of proof – survivorship has to be proved by a preponderance of the evidence
       E. Amended USDA and UPC
                  1.      An individual must survive D by 120 hours to inherit from D, or in the case
                          of a beneficiary of a life insurance policy, must survive the insured by 120
                          hours.
                  2.      Both amended USDA and UPC require 120-hour survivorship to be
                          established by clear and convincing evidence.
       F. Janus v. Tarasewicz
                  1.      Theresa and Stanley Janus die after taking Tylenol laced with cyanide.
                  2.       If Theresa were found to have survived Stanley, her estate would receive
                          the $100,000 proceeds of Stanley’s life insurance policy.
               3.      Different standards used to determine when Theresa and Stanley died.
                       Stanley was pronounced dead on September 29, 1982, using a standard
                       based upon irreversible cessation of circulatory and respiratory functions.
                       Theresa was pronounced dead two days later using a brain death
                       standard.
               4.      The trial court’s determination that Theresa survived Stanley was not
                       against the manifest weight of the evidence and was affirmed. Therefore,
                       the policy proceeds went to Theresa’s estate, and because she died
                       intestate, it went to her parents, who were her heirs.
               5.      Commentators criticize the result. The preponderance of the evidence
                       standard essentially amounts to the trial court finding “some” evidence of
                       survival. Commentators prefer 120-hour and clear and convincing
                       evidence requirements of amended USDA and UPC to avoid results such
                       as in this case.

IV.   By Representation - UPC and statutes in states that have not adopted the UPC provide
      that D’s descendants take property from D’s estate by representation. We covered three
      different methods to determine the amounts received “by representation.”
      A. English (Strict) Per Stirpes
                 1.      Divide the estate into shares at the generational level of the D’s children.
                 2.      To determine the total number of shares, assign one share for each
                         surviving child and one share for each deceased child with descendants
                         who survive the D.
                 3.      Children of deceased child “represent” the deceased child or stand in the
                         shoes of the deceased child. The children of the deceased child divide
                         the share the deceased child would have received if the deceased child
                         had survived D.
      B. Modern (American) Per Stirpes – 1969 Version of UPC and majority of jurisdictions
                 1.      Divide the estate into shares at the first generation in which there are
                         descendants who survive D.
                 2.      To determine the total number of shares, assign one share for each
                         surviving descendant at that level and one share for each deceased
                         descendant leaving descendants who survive D.
                 3.      Children of deceased descendant represent the deceased descendant
                         and divide the share the deceased descendant would have received if the
                         deceased descendant had survived D.
      C. Per capita at each generation – 1990 Version of UPC - §2-106(b) (in text -- relates to
           what “by representation” means with respect to D’s descendants) and §2-106(c) (not in
           text – relates to what “by representation” means with respect to descendants of D’s
           parents)
                 1.      Divide the estate into shares at the first generation in which there are
                         descendants who survive D.
                 2.      To determine the total number of shares, assign one share for each
                         surviving descendant at that level and one share for each deceased
                         descendant leaving descendants who survive D.
                 3.      Shares of deceased descendants are aggregated and dropped down to
                         the next generation and divided equally among the representatives of the
                         deceased descendants on the next generational level.
                 4.      Note: The 1990 version of the UPC only requires per capita at each
                         generation when determining shares of D’s descendants under §2-103(1)
                         or shares of the descendants of D’s parents under §2-103(3). We do not
                         use per capita at each generation in determining shares of the
                         descendants of D’s grandparents (aunts, uncles, cousins, etc.) under §2-
                         103(4). See Problem 2 on page 96.
        D. Examples
           P has three children, A, B, and C. A and B predecease P. A has two children, D and
           E, who survive P. B has one child, F, who survives P. C has three children, G, H, and
           I, who, along with C, all survive P. How would P’s estate be distributed under each
           system?
           1.      English (strict) per stirpes
                   a.     Divide P’s estate into three shares (one for C who survived and one
                          each for A and B who left descendants who survived P).
                   b.     C gets his share, or 1/3 of P’s estate.
                   c.     D and E represent A, and each gets half of A’s 1/3 share, or 1/6 each.
                   d.     F represents B and gets the 1/3 share which would have gone to B.
           2.      Modern (American) per stirpes
                   a.     Divide into shares at children’s generation as there is at least one
                          survivor at that level.
                   b.     Divide P’s estate into three shares (one for C who survived and one
                          each for A and B who left descendants who survived P).
                   c.     C gets his share, or 1/3 of P’s estate.
                   d.     D and E represent A, and each gets half of A’s 1/3 share, or 1/6 each.
                   e.     F represents B and gets the 1/3 share which would have gone to B.
           3.      Per capita at each generation
                   a.     Divide into shares at children’s generation as there is at least one
                          survivor at that level.
                   b.     Divide P’s estate into three shares (one for C who survived and one
                          each for A and B who left descendants who survived P).
                   c.     C gets his share, or 1/3 of P’s estate.
                   d.     A’s 1/3 share and B’s 1/3 share are aggregated for a total of 2/3 of P’s
                          estate.
                   e.     The 2/3 of P’s estate is dropped down to the level of P’s grandchildren
                          and divided equally among the representatives of A and B. A’s
                          representatives are D and E. B’s representative is F. The 2/3 of P’s
                          estate is divided equally among the three representatives. Therefore, D,
                          E, and F each get 2/9 of P’s estate (2/3 x 1/3).
     E.    Review second example from class on January 14, 2005, and problem on page 88.

V.      Shares of Ancestors and Collaterals; Half-Bloods; Disinheritance
        A. Collateral Kindred
                 1.      Persons related by blood but they are neither ancestors nor descendants
                         of D.
                 2.      Descendants of parents are first-line collaterals, descendants of
                         grandparents are second-line collaterals, descendants of great
                         grandparents are third-line collaterals, etc.
                 3.      After first-line collaterals, states use either a parentelic method or degree-
                         of-kinship method to determine D’s heirs.
        B. Parentelic – estate passes to grandparents and their descendants (second-line), then
           to great grandparents and their descendants, etc. The UPC doesn’t go any farther
           than the second-line collaterals.
        C. Degree-of-relationship
                1.     Determine the degree of relationship by adding up the steps (one for each
                       generation) from the decedent to the nearest ancestor D and the potential
                       heir have in common and the steps down from the nearest common
                       ancestor to the potential heir.
                2.     For D’s second cousin, it is three steps (generations) up from D to the
                       nearest common ancestor, the great grandparent, and three steps
                       (generations) down from the great grandparent to the second cousin.
                       Therefore, the degree of relationship is 6.
                3.     The lower the degree of relationship, the closer the relative is to D.
                       Relatives in the lowest degree of relationship (closest of kin) will receive
                       property from D. In Massachusetts, where relatives would claim through
                       different ancestors, ties in terms of degrees of relationship are broken by
                       giving to the relative claiming through the nearer ancestor. Thus, if D has
                       a great-grand nephew (5th degree per chart on page 92) and a first cousin
                       once removed (also 5th degree per chart), the great-grand nephew would
                       take under MA law as he is claiming through a nearer ancestor of D, D’s
                       parent, than the first cousin once removed.
       D. Review Problems 1-3 on page 96.
       E. Half-Bloods
                1.     As noted above with respect to brothers and sisters, the UPC treats half-
                       blood relatives the same as whole-blood relatives. This is also codified in
                       UPC §2-107.
                2.     Mississippi – half-bloods take only if no whole-blood relatives of the same
                       degree survive
                3.     Virginia – half-blood relatives take a half share.
                4.     See Problem on page 97.
       F. Disinheritance
          UPC §2-101(b) provides that D may specify by will individuals or classes of individuals
          to whom none of D’s estate is to pass. The disinherited individual is treated as
          disclaiming any intestate share. An individual who disclaims a share is treated as if he
          predeceased D.

VI.    Posthumous Children
       A. Common law – rebuttable presumption that gestation period is 280 days.
       B. Uniform Parentage Act presumes that a child born to a woman within 300 days after
          the death of her husband is a child of that husband.

VII.   Adopted Children
       A. UPC §2-114(b)
               1.     General rule: For purposes of intestacy, an adopted child is treated as the
                      child of his or her adoptive parents and not of his or her natural parents.
                      Adoption cuts off the natural parents. The child cannot inherit through the
                      natural parents nor can the natural parents inherit through the child. See
                      first clause.
               2.     Exception: If the adoptive parent is a spouse of a natural parent, the child
                      is considered a child of both the adoptive parent and the natural parent.
                      Furthermore, the child may inherit through the adoptive parent, the natural
                      parent married to the adoptive parent, and the other natural parent. See
                      §2-114(b)(i)&(ii). But also note that the other natural parent’s relatives
                      would not be able to inherit from the adopted child.
     B. Maryland Estates and Trusts Code
              1.       The general rule of the UPC noted above applies in Maryland.
              2.       If a natural parent is married to an adoptive parent, the child is considered
                       a child of both the natural parent and the adoptive parent.
              3.       Unlike the UPC, the child whose adoptive parent married his natural
                       parent cannot inherit through the other natural parent. The adopted child
                       may inherit through the adoptive parent and the natural parent who
                       married the adoptive parent.
C.      Texas - Adopted child can inherit through either his adoptive or natural parents
D.      Hall v. Vallandingham
        Jim Kilgore marries Elizabeth Vallandingham, widow of Earl Vallandingham and mother
        of Earl’s four children. Kilgore adopts the four children. When Earl’s brother dies
        intestate, his children cannot inherit through their natural father under Maryland’s
        Estates and Trusts Code as noted above. In a UPC jurisdiction, the opposite result
        would have been reached -- Earl’s children would have been able to inherit through
        Earl. But, as noted above and on page 103, Earl’s relatives would not have been able
        to inherit from Earl’s children in a UPC jurisdiction.
E.      Parents in Surrogate Mother cases – Note 2, pages 103-104
        1.      Things to note – some states, like CA, will enforce surrogacy agreements, while
                others will prohibit them, or enforce under limited conditions. MA held an
                agreement void because surrogate mother’s consent was given for
                compensation.
        2.      To determine who parents are in surrogacy agreements, CA courts will look to
                the parties’ intent and not to who gave birth or provided genetic material.
F.      Same sex parents – Note 3, page 105
        1.      In MA, the court approved the adoption of a child by the lesbian partner of the
                natural mother. The court also held that the adopted child would inherit from
                and through both mothers.
        2.      In a UPC jurisdiction, if the lesbian partner were to adopt the child, the child’s
                natural mother would no longer be considered a parent of the child. The
                general rule in UPC §2-114(b) that an adopted child is the child of her adoptive
                parents and not her natural parents would apply. The exception of §2-114(b)(i)
                would not apply as the adoptive parent would not be married to the natural
                parent. Furthermore, the child would not be able to inherit from or through her
                natural mother. See §2-114(b)(ii).
G.      Note 5, pages 106-107.
        1.      In CA, it is possible for a foster child or a stepchild to inherit from a foster parent
                or stepparent if a natural parent refuses to consent to an adoption as long as:
                (1) relationship of parent and child began during child’s minority and continued
                through the parties’ joint lifetimes; and (2) it is established by clear and
                convincing evidence that the foster parent or stepparent would have adopted
                the person but for a legal barrier.
        2.      Once child reaches majority, natural parent loses right to prevent adoption by
                refusing to consent to adoption. Therefore, after child reaches majority, a
                formal adoption must take place for the child to inherit.
H.      Adult adoption
        1.      Adopting a friend may be useful in leaving property by will to the friend and
                preventing will contests. This is because an adopted child becomes the heir
                with standing to challenge the will rather than collateral relatives.
        2.      Adoption of an adult lover not allowed in NY but allowed in Delaware and
                Kentucky.
 VIII.   Equitable Adoption
         A. O’Neal v. Wilkes
                1. Hattie O’Neal’s aunt arranges for Roswell Cook and his wife to adopt her
                    when she is 12. She lives with Mr. Cook until she gets married at age 26.
                    Mr. Cook refers to her as his daughter and her children as his
                    grandchildren. When he dies intestate, O’Neal is denied a share of his
                    estate.
                2. The court stated that a contract for adoption must be made between
                    persons who are competent to contract for the adoption of the child.
                    Because the aunt was not O’Neal’s legal guardian, she did not have the
                    authority to enter into an adoption contract. Therefore, the court held that
                    the contract was not valid or enforceable and O’Neal could not inherit from
                    Cook.
                3. The dissent states that “equity considers that done which ought to have
                    been done.” The dissent states that “where a child has fully performed the
                    alleged contract over the course of many years or a lifetime and can
                    sufficiently establish the existence of a contract to adopt, equity should
                    enforce the contract…”
                4. Dissent also states that basing equitable adoption in contract theory has
                    been criticized by commentators. The contract is not being specifically
                    enforced as the adopting parents are dead; for equitable reasons, the child
                    is being put into the position that she would have been in if she had been
                    adopted. Dissent believes that focus should be on the relationship between
                    the adopting parents and the child and whether the adopting parents have
                    led the child to believe that he or she is a legally adopted member of their
                    family.
         B. Under doctrine of equitable adoption, an agreement between a child’s natural
            parents and would-be adoptive parents is implied and specifically enforced where
            the would-be adoptive parents take the child into their home and raise the child as
            their own without formally adopting the child.
         C. Equitable adoption permits equitably adopted child to inherit from the foster
            parents, but does not permit the foster parents and their relatives from inheriting
            from the child. The foster parents did not perform their contract and have no claim
            in equity.
         D. Courts split on whether equitably adopted child could inherit from relatives of foster
            parents.

IX.      Nonmarital Children
         A.   Common Law – Child born out of wedlock could not inherit from either father or
              mother. Only child’s spouse and descendants could inherit from the child.
         B.   Today all jurisdictions permit inheritance through the child’s mother but vary as
              to inheritance from the father.
              1. In Trimble v. Gordon, U.S. Supreme Court held that an Illinois statute that
                   denied inheritance rights from the father denied equal protection and was
                   unconstitutional. Total statutory disinheritance was not rationally related to
                   the state’s interest in obtaining reliable proof of paternity.
              2. On other hand, Court upheld NY statute allowing inheritance from the father
                   only if the father married the mother or had been formally adjudicated the
                   father by a court during the father’s lifetime.
              3. Most states today permit paternity to be established by:
                 a. evidence of the subsequent marriage of the parents;
                 b. acknowledgment by the father;
                 c. an adjudication during the life of the father;
                 d. clear and convincing evidence after the father’s death.
C.   Uniform Parentage Act presumes a parent-child relationship if:
     1.       the father receives the child into his home while the child is a minor and
              openly holds out the child as his natural child; or
     2.       the father acknowledges his paternity in a writing filed with an
              appropriate court or administrative agency.
     3.       If a parent-child relationship is presumed to exist, an action to determine
              its existence may be brought at any time.
     4.       If a child has no presumed father, an action to establish parent-child
              relationship must be brought within three years after child reaches
              majority.
D.   Establishing paternity after alleged father’s death
     1.       Most states allow establishing paternity after father’s death by clear and
              convincing evidence.
     2.       California -- Unless paternity is presumed to exist under Uniform
              Parentage Act as discussed above, paternity cannot be established
              after the father’s death unless:
                       a.       a court order was entered during father’s lifetime
                                declaring paternity;
                       b.       paternity is established by clear and convincing evidence
                                that the father has openly held out the child as his own;
                                or
                       c.       it was impossible for the father to hold out the child as his
                                own and paternity is established by clear and convincing
                                evidence. Authors state this would be the situation if the
                                child were born after the father’s death or the father did
                                not know the child was born.
E.   U.S. Supreme Court held that father who acknowledges paternity in court can
     inherit from the child born out of wedlock. The UPC would not permit father to
     inherit if he did not openly treat the child as his or refused to support the child.
F.   Hecht v. Superior Court
     1.       D’s interest in his frozen sperm vials was in the nature of ownership and
              fell within the definition of property in the Probate Code. Therefore, the
              probate court had jurisdiction over the sperm vials.
     2.       The court rejected the argument that artificial insemination of an
              unmarried woman was against the public policy of California. The court
              noted that the Uniform Parentage Act provided protection to both
              married and unmarried women who were artificially inseminated from
              donors claiming paternity.
     3.       The court rejected the argument that public policy forbids artificial
              insemination of Hecht with the stored sperm of a deceased man. The
              court cited a French case that the decision to conceive or not to
              conceive is a fundamental right and stated that the parties urging
              destruction of the sperm had not established a state interest sufficient to
              justify interfering with the decision of the D and Hecht to conceive a
              child using his sperm.
     4.       The court also rejected the argument that the estate would be subject to
              the claims of any posthumously conceived children. But, subsequent to
             the case, California amended its statutes to permit a child to establish
             paternity after the father’s death in the three circumstances noted
             above. A child could establish paternity after the father’s death by clear
             and convincing evidence if it was impossible for the father to hold the
             child out as his own. In this case, it would have been impossible for
             Kane to hold out any child conceived after his death as his own.
G.   The Uniform Status of Children of Assisted Conception Act provides that “[a]n
     individual who dies before implantation of an embryo, or before a child is
     conceived other than through sexual intercourse, using the individual’s egg or
     sperm is not a parent of the resulting child.” The policy underlying the act is to
     avoid problems with intestate succession that could arise if the resulting child
     could claim a share of the D’s estate.
H.   Under California’s current law, it would seem that a posthumously conceived
     child would have an unlimited time to claim a share of the father’s estate.
I.   The authors claim that the Uniform Status of Children of Assisted Conception
     Act is overbroad. The authors argue that states could limit the time that such a
     child could claim a share of the parent’s estate just as states limit the time for
     claims by nonmarital children.

				
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