Ch 1: Intestacy - Issue

Question 1

What are a decedent’s issue? (T)

Answer 1

A decedent’s issue is all lineal descendants, including children, grandchildren, great-grandchildren, and the like, but excluding the descendants of living lineal descendants. A parent-child relationship must be established for an individual to be classified as another’s issue.

Question 2

What is the presumption of a child of a marriage? (T)

Answer 2

A child of a marriage is presumed to be the natural child of the married parties.

Question 3

What are posthumously born children? (T)

Answer 3

A posthumously born child is a child conceived before, but born after, his mother’s husband’s death.

Question 4

What is the rebuttable presumption in most jurisdictions regarding posthumously born children? (T)

Answer 4

In most jurisdictions, a rebuttable presumption exists that the child is the natural child of the deceased husband if the child is born within 280 days of his death.

Question 5

What happens if a posthumously born child is born more than 280 days after the husband’s death? (T)

Answer 5

A posthumously born child born more than 280 days after the husband’s death has the burden of proving that he is the deceased husband’s natural child.

Question 6

What is the posthumously born child rule under the Uniform Parentage Act (UPA)? (T)

Answer 6

The Uniform Parentage Act increases the number of days in which the rebuttable presumption applies to 300.

Question 7

Are adopted children included in references in a will to children? (T)

Answer 7

Yes.

Question 8

How are adopted children treated for inheritance purposes? (T)

Answer 8

An adopted child is treated as a biological child for inheritance purposes.

Question 9

What does adoption do between the natural parents and the child for purposes of inheritance? (T)

Answer 9

Adoption curtails (reduce in extent or quantity; impose a restriction on) all inheritance rights between the natural parents and the child.

Question 10

What happens if an adopted child dies intestate? (T)

Answer 10

If an adopted child dies intestate, then his property is distributed among those who would have been his heirs had he actually been born to his adoptive parents.

Question 11

What is the stepparent exception in most jurisdictions (including the UPC). (T)

Answer 11

Most jurisdictions, including the UPC, modify the general rule for adoptions when the adoption is by a stepparent. The adoption severs the parent-child relationship with one natural parent, essentially replacing the child’s family with a “fresh start.”

Question 12

Regarding the stepparent exception, does an adoption curtail the parent-child relationship? (T)

Answer 12

No. The adoption does not curtail the parent-child relationship or the inheritance rights of a natural parent who is married to the stepparent. Rather, it establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions.

Question 13

Regarding the stepparent exception, does a parent-child relationship still exist between the stepparent and the child? (T)

Answer 13

A parent-child relationship still exists with the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through that other genetic parent.

In a minority of jurisdictions, the parent-child relationship with the natural parent is entirely severed.

Question 14

Do foster children and stepchildren have a right to inherit from their foster parents? (T)

Answer 14

No. Foster children and stepchildren have no right to inherit from their foster parents or stepparents.

Question 15

When are foster parents and stepparents treated as adoptive parents for inheritance purposes? (T)

Answer 15

Foster parents and stepparents are treated as adoptive parents for inheritance purposes if:

i) The relationship began during the child’s minority and continued throughout her life; and

ii) There is clear and convincing evidence that the foster parent or stepparent would have adopted the child but for a legal barrier.

Question 16

How may a foster child who was never legally adopted be treated as the child of a foster parent who dies intestate? (T)

Answer 16

A foster child who was never legally adopted may be treated as the child of a foster parent who dies intestate if the foster parent made an agreement with the natural parents of the child to adopt her and proceeded to treat the child as his own.

Question 17

Generally, under equitable adoption, what is an adopted child’s situation regarding inheritance? (T)

Answer 17

Generally, under equitable adoption, a child can inherit from, but not through, the equitable adoptive parent. Additionally, the equitable adoptive parents cannot inherit from or through the child.

Question 18

For the purposes of inheritance, how are true adoptions and equitable adoptions different? (T)

Answer 18

Unlike in a true adoption, the parent-child relationship and the inheritance rights between the child and the natural parents are not affected.

Question 19

For the purposes of inheritance, what is the rule for half-bloods? (T)

Answer 19

At common law, relatives with only one common parent were not entitled to inherit from or through one another. Most jurisdictions, including the UPC, have abolished the distinction between whole- and half-blooded relatives.

Question 20

What is the modern trend (rule) regarding children born out of wedlock? (T)

Answer 20

The modern trend adopted by most jurisdictions is that an out-of-wedlock child can inherit from her natural father only if:

i) The father subsequently married the natural mother;

ii) The father held the child out as his own and either received the child into his home or provided support;

iii) Paternity was proven by clear and convincing evidence after the father’s death; or

iv) Paternity was adjudicated during the father’s lifetime by a preponderance of the evidence.

Question 21

When is it unconstitutional to deny inheritance rights to a nonmarital child? (T)

Answer 21

It is unconstitutional to deny inheritance rights to a nonmarital child when the father’s paternity was adjudicated during his lifetime.

The current trend allows more ways for illegitimate children to prove parentage after the alleged parent is deceased.

Question 22

For the purposes of inheritance, what does the UPA require before a child can inherit from or through her natural father? (T)

Answer 22

The UPA requires proof of paternity before a child can inherit from or through her natural father.

Question 23

Under the UPA, when can a child bring an action to establish paternity for inheritance? (T)

Answer 23

The child can bring an action to establish paternity for inheritance purposes at any time if a presumption of paternity exists.

Question 24

If there is no presumption of paternity, when must the child bring an action to establish paternity for inheritance? (T)

Answer 24

The child must bring an action to establish paternity for inheritance purposes within three years of reaching the age of majority if there is no presumption of paternity. Otherwise, the action is barred.

Question 25

For a presumption of paternity to arise, what must the father do? (T)

Answer 25

A presumption of paternity arises if the father acknowledges the child as his own by (1) holding the child out as his own or (2) stating so in a writing and filing it with the appropriate court.

Question 26

What is the Uniform Status of Children of Assisted Conception (USCAC)'s stance on posthumously conceived children? (T)

Answer 26

The USCAC does not recognize posthumously conceived children as natural children of a parent who dies before conception. Although jurisdictions differ on whether a posthumously conceived child can receive an intestate distribution of the deceased parent’s estate, most follow the USCAC.

Question 27

How are shares calculated among issue according to the UPC (and a handful of states)? (T)

Answer 27

The UPC and a handful of states adopt the per capita at each generation approach. The rest are split between per stirpes and per capita with representation (the latter is more common).

Question 28

What is the rule regarding per capita with representation (modern per stirpes)? (T)

Answer 28

Per capita with representation divides the property equally among the first generation in which at least one member survives the decedent. If a member of that generation does not survive the decedent, that share passes to their surviving issue. If the deceased member does not have surviving issue, then that member does not receive a share.

Question 29

What is the rule for per stirpes? (T)

Answer 29

Under a per stirpes distribution scheme, the estate is first divided into the total number of children of the ancestor who either survive or leave surviving issue. The decedent's issue take in equal portions the share that their deceased ancestor would take, if living.

Question 30

What is the rule for per capita at each generation? (T)

Answer 30

The per capita at each generation approach, followed by the UPC, divides the property into as many equal shares as there are members of the nearest generation of issue who survive the decedent and deceased members of that generation with issue who survive the decedent.

Question 31

How should you analyze fact patterns using the per capita at each generation approach? (T)

Answer 31

When analyzing fact patterns using the per capita at each generation approach, begin as per capita with representation, but then divide the remaining shares equally among the members of the next generation.

Question 32

How does the UPC allow an individual to disinherit an heir? (T)

Answer 32

The UPC allows an individual to disinherit an heir by properly executing a will expressing the intent to disinherit, even if not all property is disposed of in the will.

Question 33

How are barred heirs treated under the UPC? (T)

Answer 33

The barred heir is then treated as having predeceased the decedent.

Question 34

What happens if there are no surviving spouse or issue to succeed to the decedent’s estate? (T)

Answer 34

If there are no surviving spouse or issue to succeed to the decedent’s estate, then the property may be distributed to the decedent’s ancestors (e.g., parents, grandparents, great-grandparents) and more remote collateral relatives.

Question 35

What are collateral relatives? (T)

Answer 35

Collateral relatives are those related via a common ancestor, such as siblings, aunts, uncles, and cousins.

Question 36

What is the parentelic approach to collateral inheritance? (T)

Answer 36

The parentelic approach, adopted by the UPC, follows collateral lines until a living taker is found, at which point the decedent’s property is distributed within that taker’s parentelic line.

Question 37

If there is no surviving spouse or decedent, what order does the parentelic approach follow? (T)

Answer 37

If there is no surviving spouse or descendant, then the estate passes to the following individuals who survive the decedent, in this order: i) To the decedent’s parents equally if both survive, or to the surviving parent; ii) If there is no surviving descendant or parent, then to the descendants of the decedent’s parents; iii) If there is no surviving descendant, parent, or descendant of a parent, then to the decedent’s maternal and paternal grandparents, one-half to each, or if the grandparents are deceased, to the descendants of the maternal and paternal grandparents; iv) If there is no surviving grandparent or descendant of a grandparent on the maternal or the paternal side, then to the decedent’s nearest maternal and paternal relatives; and v) If there are no surviving relatives, then to the state (i.e., escheats to the state).

Question 38

When can a parent not inherit through her child? (T)

Answer 38

A parent cannot inherit through her child if (1) her parental rights have been terminated or (2) the child dies before turning 18 and there is clear and convincing evidence that the parent's parental rights could have been terminated under state law.

Question 39

What is the degree-of-relationship approach? (T)

Answer 39

The degree-of-relationship approach results in those with closer degrees of relationship to the decedent taking to the exclusion of more remote relatives.

Question 40

How is the degree-of-relationship calculated? (T)

Answer 40

The degree of relationship is calculated by counting the number of relatives between the living taker and the decedent using the closest common ancestor.

Question 41

What is the combined approach? (T)

Answer 41

The parentelic approach serves as a tiebreaker if that the degree-of-relationship approach results in a tie between multiple living takers sharing the same lowest degree of relationship. Those in the closer collateral line take to the exclusion of those in the more remote collateral line.