Decedents' Estates July 2004 Flashcards
(6 cards)
Summary
Under the Uniform Simultaneous Death Act, Clara is deemed to have predeceased Decedent. Likewise, Clara predeceased Decedent under the 120-hour survivorship rule of the Uniform Probate Code(UPC). Therefore, Son-in-Law cannot claim any share of Decedent’s estate. Decedent’s heirs are his siblings: Brother, Half-Sister, and Adopted-Sister. However, their respective shares of Decedent’s estate may differ depending upon underlying state law. The gift to Brother is not an advancement and thus does not reduce Brother’s share of Decedent’s estate. If Half-Sister takes an equal share, then Brother, Half-Sister, and Adopted-Sister are each entitled to $100,000. Gramps would take only in a state determining heirship under the civil law method of consanguinity, which very few states apply.
Under the Uniform Simultaneous Death Act, there is a presumption that Clara predeceased Decedent and there is no evidence here to rebut that presumption. Likewise, under the UPC’s 120-hour survivorship rule, Clara predeceased Decedent because she did not survive him by 120 hours. Thus, Son-in-Law is not entitled to any share of Decedent’s estate.
Son-in-Law, as the sole beneficiary under Clara’s will, would be entitled to Decedent’s estate only if Clara had been entitled to inherit Decedent’s estate. Clara would be an heir of Decedent only if she survived Decedent, because an heir must be alive at the time of the intestate’s death. However, in a situation such as this one, where the two decedents were killed in the same traffic accident, Clara is deemed to have predeceased Decedent if there is insufficient evidence that she and Decedent died other than simultaneously. Unif. Simul. Death Act § 2. Since the evidence here is insufficient to establish that they did not die simultaneously, under the Uniform Act, Clara is deemed to have predeceased Decedent.
While it might be argued that Clara survived because the truck hit her car from the rear and presumably hit Decedent first, it is also possible that the mere impact at the rear of Clara’s car was sufficient to cause both their deaths. Furthermore, the only direct evidence of their deaths was that neither appeared to be alive at the scene of the accident. Thus, there is no direct evidence to establish that Clara survived Decedent. The fact that Decedent was declared dead first should not be controlling because the declarations of death were made simply in the order in which they were removed from the ambulance, and the factual evidence supports the conclusion that neither was alive when they were placed into the ambulance.
Under § 2-104 of the UPC, Clara is also not an heir of Decedent because she failed to survive him by 120 hours.
Half-Sister is an heir of Decedent. Depending on state law, she is entitled either to the same share as a whole sibling or a lesser share.
Decedent’s heirs will be the descendants of his deceased parents and perhaps Gramps. See Point Five. The issue therefore arises whether siblings of the half-blood and adopted siblings inherit along with siblings of the whole blood.
Half-Sister and Decedent are half-bloods because they share only one common parent. Under § 2-107 of the UPC, relatives of the half-blood inherit the same share as relatives of the wholeblood. Thus, Half-Sister would take $100,000.
However, in some jurisdictions they inherit a smaller share. See, e.g., Iowa Code § 633.219.
Adopted-Sister is an heir of Decedent.
At common law, an adopted child could not take from or through an adopting parent. Thus, at common law, Adopted-Sister would not be Decedent’s heir. By the end of the twentieth century, motivated by a policy to treat the adopted child as part of the adopting parents’ nuclear family, most state laws were changed to provide that an adopted child is treated as a biological child for purposes of inheritance. Thus, under the UPC, Decedent’s estate is distributed equally to the descendants of his deceased parents. See UPC § 2-103(3). The descendants of Decedent’s parents include both their biological and adopted children. See UPC § 2-114(b). Thus, Adopted-Sister would take $100,000.
Decedent’s lifetime gift to Brother is not an advancement and thus does not reduce Brother’s share of Decedent’s estate.
At common law, a lifetime transfer to a child who would be the transferor’s heir was treated as a down payment on the child’s intestate share. Under the common-law rule, the gift to Brother would not be an advancement as Brother is not Decedent’s child. See generally Joel C. Dobris, Stewart E. Sterk & Melanie B. Leslie, ESTATES AND TRUSTS 155 (2d ed. 2003); see also 755 Ill. Comb. Stat. 5/2-5.
Many states have broadened the common-law rule to include transfers to any person who is an heir. However, most states also provide that a lifetime transfer to a person who would be the transferor’s heir is presumptively a gift and not an advancement. See UPC § 2-109.
States differ in what it takes to rebut the gift presumption. Some states permit any competent evidence to be used to rebut the presumption. Others have a heightened evidentiary requirement. For example, under the UPC, the presumption that a lifetime transfer was a gift can be rebutted by a contemporaneous writing of either the decedent or the donee stating either that the gift was an advancement or that it was to be taken into account in computing the distribution of the decedent’s estate. UPC § 2-109. Here, however, there is neither a writing nor any other competent evidence that Decedent intended an advancement when he made the transfer to Brother. Consequently, the transfer to Brother would be treated as a gift, not an advancement, and Brother would take $100,000 of Decedent’s estate.
Lastly, in some states an advancement only occurs when the donee would have been an heir of the decedent at the time the transfer was made. See, e.g., Iowa Code § 633.224. If that rule applies here, the transfer could not be an advancement because at the time Decedent transferred the money to Brother, Clara was living and thus would have been Decedent’s only heir.
Gramps is not entitled to receive any share of Decedent’s estate unless heirship in the state was determined under the civil law method of consanguinity.
Under the civil law method of consanguinity, Gramps as well as Decedent’s siblings would be related to Decedent within the second degree of consanguinity and Gramps would share equally with the siblings in the estate. Most states have rejected this method of determining heirship. In those states, including all those that have adopted the UPC and those that follow the parentelic method of descent, Gramps would not be entitled to share in Decedent’s estate.
