Intestate Succession Flashcards
Failure of Will
total or partial failure of a will will generally lead to intestacy on the bar
Community Property
a decedent’s share of community property passes to the surviving spouse or domestic partner; the other half ot eh community property already belongs to the surviving spouse
Decedent’s one half share of QCP passes to surviving spouse, as well, in the absence of a will
Separate Property
Surviving spouse takes 1/3 or 1/2, depending on number of children who survive the decedent
If no issue, parent, siblings, or issue of deceased siblings, surviving spouse gets ALL of separate property
If decedent survived by ONE CHILD, or issue of a predeceased child, 1/2 of surviving spouse and 1/2 to child or child’s issue
If decedent survived by 2 OR MORE CHILDREN, or issue of predeceased children, 1/3 to surviving spouse and 2/3 to children or their issue
If decedent is survived by no issue, but leaves PARENT or PARENTS or their issue, then 1/2 to parent or parents or their issue, 1/2 to surviving spouse or domestic partner
Share of other heirs
parents and more remote collateral kin never inherit if decedent is survived by issue
If no issue, share not passing to spouse goes to Parents, and, if no parents survive, then issue of decedent’s parents (brothers, sister,s and issue of deceased siblings). If none, entire estate goes to surviving spouse.
If no spouse even, goes to grandparents or their issue, if none then issue of predeceased spouse; if none then decedent’s next of kin; if none then parents of a predeceased spouse; if none, then escheats to the state.
NOTE: never goes this far on the bar
Adopted children
for purposes of intestate succession, adopted child inherits from and through adoptive parents and their relatives, and vice versa
Generally does not inherit from natural parents or relatives
Exception: Not severed from natural parents when adoption is by the spouse of the natural parent, or after the death of either of the natural parents
Stepchildren and Foster Children
child is treated as adopted if 3 elements satisfied: (1) relationship began during the child’s minority; (2) continued throughout the parties lifetimes; and (3) clear and convincing evidence that the step or foster parent would have adopted but for a legal barrier (e.g. biological parent does not consent to adoption)
Adoption by Estoppel
When parties hold themselves out as parent-child and would have adopted but for a mistake in the adoption process
Nonmarital Children
In CA, marital status of parents is irrelevant. key is whether a parent/child relationship existed, irrespective of marital status
Domestic partnership: parent/child relationship established as to the non-birthing partner by means of presumptions: (1) child born during domestic partnership is presumed to be a child of non-birthing partner; or (2) if domestic partnership formed after child’s birth and the non-birthing domestic partner is named on the birth certificate or if there is voluntary promise to pay child support
half bloods
relatives who have only 1 common parent, and not 2 (half siblings)
Relatives of the half blood inherit the same as the whole blood
Parent prohibited form inheriting
Parent does not inherit from or through a child and is created as if predeceased if: (1) parent did not acknowledge the child; (2) parent’s parental rights were terminated; or (3) parent left the child during child’s minority with the intent to abandon for at least seven consecutive years before child reached the age of majority and did not support or communicate with that child during that time
Per Capita Representation
When issue take by intestacy or if a will or trust provides for issue to take w/o specifying the manner
(1) issue of same degree take PER CAPITA (equally and in their own right)
(2) issue of more remote degree take PER CAPITA WITH REPRESENTATION
Property divided in equal shares at the FIRST GENERATION AT WHICH THERE ARE LIVING TAKERS
Per Stirpes
Property divided at the level of decedent’s children, regardless of whether alive or not
