Ch 1: Terminology; Intestacy – Spouses

Question 1

What is intestacy? (T)

Answer 1

Intestacy is the default statutory distribution scheme that applies when an individual (i.e., decedent) dies without effectively disposing of all property through a valid will or other nonprobate instruments.

Question 2

If someone dies intestate, does their intent matter? (T)

Answer 2

No. If a person dies intestate, the decedent’s actual intent regarding the disposition of his property is irrelevant.

Question 3

Who are the individuals who are entitled to the property of a decedent who dies intestate? (T)

Answer 3

The individuals who are entitled to the property of a decedent who dies intestate are the decedent’s “heirs.”

Question 4

Generally, who do intestacy statues favor? (T)

Answer 4

Intestacy statutes vary from state to state, but they generally favor the decedent’s surviving spouse and issue (i.e., lineal descendants), followed by other relatives.

Question 5

What happens to property if none of the statutory takers survive the decedent? (T)

Answer 5

Property escheats (i.e., reverts) to the state only if none of the statutory takers survive the decedent.

Question 6

If a will fails to dispose of all of the decedent’s probate property, what should you analyze? (T)

Answer 6

If a will fails to dispose of all the decedent’s probate property, analyze the problem using the rules of intestacy for the property not transferred by the will or other instrument.

Question 7

What is the primary policy underlying intestate statutes? (T)

Answer 7

The primary policy underlying intestacy statutes is to carry out the probable intent of the average intestate decedent.

Question 8

What do the most common intestate statutory schemes assume? (T)

Answer 8

The most common statutory scheme assumes that a decedent wants a surviving spouse to receive all of the property if there are no surviving issue, and otherwise to share the property with any surviving issue.

Question 9

Under the UPC, how much of the intestate decedent’s estate is the surviving spouse entitled to if all of decedent’s issue are also descendants of the surviving spouse and the surviving spouse has no other issue; or the decedent has no issue and no parents? (T)

Answer 9

The surviving spouse gets the entire estate.

Question 10

Under the UPC, how much of the intestate decedent’s estate is the surviving spouse entitled to when the decedent has no surviving issue but has a surviving parent? (T)

Answer 10

The surviving spouse gets $300,000 + 75% of the rest of the estate.

Question 11

Under the UPC, how much of the intestate decedent’s estate is the surviving spouse entitled to when all of the decedent’s issue are also descendants of the surviving spouse, and the surviving spouse has other issue? (T)

Answer 11

The surviving spouse gets $225,000 + 50% of the rest of the estate.

Question 12

Under the UPC, how much of the intestate decedent’s estate is the surviving spouse entitled to when the decedent has issue unrelated to the surviving spouse? (T)

Answer 12

The surviving spouse gets $150,000 + 50% of the rest of the estate.

Question 13

What does the general intestacy scheme presume? (T)

Answer 13

The general intestacy scheme presumes that the jurisdiction does not recognize community property.

Question 14

What does community property consider (what is community property)? (T)

Answer 14

Community property considers the parties to jointly own all property acquired during the marriage unless it is a gift, inheritance, or devise given to only one spouse.

Question 15

What happens if a person dies in a community property jurisdiction? (T)

Answer 15

In a community property jurisdiction, the decedent’s community property is divided equally and 50% goes to the surviving spouse.

Question 16

What happens if a person dies intestate in a community property jurisdiction? (T)

Answer 16

If the decedent died intestate, then the surviving spouse generally receives the decedent’s remaining 50% share of the community property. The decedent’s separate property is then distributed under the general intestacy scheme.

Question 17

What is the rule for the marriage requirement? (T)

Answer 17

The surviving spouse must have been legally married to the decedent to be entitled to take under an intestacy statute.

Question 18

Generally, do couples who live together qualify as spouses? (T)

Answer 18

No. Generally, couples who live together do not qualify as spouses. However, a minority of jurisdictions treats couples who have registered as domestic partners or entered civil unions similarly to spouses for inheritance purposes.

Question 19

What is the putative spouse doctrine? (T)

Answer 19

Even if a marriage is not valid, as long as one party believes in good faith in its validity, the spouses are termed putative and qualify as spouses for inheritance purposes.

Question 20

For the purposes of intestate succession, what is abandonment? (T)

Answer 20

In many states, if one spouse abandons the other for a prescribed period, then the marital relationship is terminated, and the two are no longer considered spouses.

Question 21

For the purpose of intestate succession, what is separation? (T)

Answer 21

Spouses who are separated or divorcing remain spouses until a final decree of dissolution of the marriage is issued. Decrees of separation that do not terminate the status of husband and wife do not constitute a divorce. This treatment applies to a will in which a devise is made to a spouse as well as an intestacy distribution.

Question 22

What is the rule for survival requirements in intestate succession? (T)

Answer 22

If a decedent’s heir fails to meet the survival requirement, then the heir is considered to have predeceased the decedent and does not take under the laws of intestacy.

Question 23

What was the common law evidentiary standard for the survival requirement? (T)

Answer 23

The common law required proof by a preponderance of the evidence that an heir survived the decedent.

Question 24

What is the Uniform Simultaneous Death Act (USDA)? (T)

Answer 24

The USDA is enacted in most states to alleviate the problem of simultaneous death in determining inheritance.

Question 25

What does the USDA apply to? (T)

Answer 25

The USDA applies to all types of property transfers, whether through will, joint tenancy, contract, or intestacy. However, the USDA applies only when there is no instrument to state otherwise.

Question 26

What evidentiary burden does the USDA require for a person to take under a will or by intestacy? (T)

Answer 26

To take under a will or by intestacy, the USDA requires clear and convincing evidence that an heir survived the decedent by 120 hours, unless the testator has provided otherwise in his will.

Question 27

When does the 120-hour rule not apply? (T)

Answer 27

The 120-hour rule does not apply if its application would result in an escheat to the state.

Question 28

What does the USDA say when there is insufficient evidence of the order of death of two individuals? (T)

Answer 28

The USDA also provides that when there is insufficient evidence of the order of death of two individuals, the property of each individual passes as though the other individual predeceased him.

Question 29

What is the UPC standard concerning survival? (T)

Answer 29

The UPC has the same requirements concerning survival as the USDA. The UPC also requires clear and convincing evidence that an individual in gestation at the decedent’s death live for 120 hours after birth.

Question 30

What is the common law standard for the determination of death? (T)

Answer 30

In most instances, death can be determined through the irreversible cessation of circulatory and respiratory functions.

Question 31

What is the modern standard for determination of death? (T)

Answer 31

The modern standard redefines death as brain death. No established criteria for brain death exist, but a determination of death under either the modern or the common-law standard must comply with usual and customary medical standards.

Question 32

Who must prove survivorship? (T)

Answer 32

Survivorship is a question of fact that must be proven by the party whose claim depends on survivorship (i.e., the person attempting to take under the laws of intestacy has the burden of proof).

Question 33

What was the common law standard for the survivorship requirement? (T)

Answer 33

The common law applied the “preponderance of the evidence” standard. Some jurisdictions, including the UPC and USDA, have applied the higher “clear and convincing evidence” standard as a litigation deterrent.