Intestacy

Question 1

If only the spouse survives the decedent, what does he take?

Answer 1

The entire estate

Question 2

If only a spouse and a parent survive the decedent, what does the spouse take?

Answer 2

$300,000 and 75% of the remainder of the estate

Question 3

If all of the decedent’s issue are also issue of the surviving spouse, what does the spouse take?

Answer 3

$225,000 and 50% of the remainder of the estate

Question 4

If all of the decedent’s issue are issue of the surviving spouse, and the surviving spouse has issue, what does the spouse take?

Answer 4

$150,000 and 50% of the remainder of the estate

Question 5

What does the spouse acquire in a community property jurisdiction?

Answer 5

All property acquired during the marriage is jointly owned by both spouses unless it is a gift, inheritance, or devise given to only one spouse.

If the decedent dies intestate, then his 50% goes to the spouse.

Question 6

What defines a surviving spouse?

Answer 6

They must be married and must survive

Question 7

What is a putative spouse?

Answer 7

A person will be considered a spouse if they believed in good faith in an invalid marriage

Question 8

What effect does separation have on intestacy?

Answer 8

Spouses are still married until the issuance of a final dissolution decree

Question 9

Under the common law, what is the survival requirement?

Answer 9

He must have survived the decedent by any length of time

Question 10

Under the Uniform Simultaneous Death Act, what is the survival requirement?

Answer 10

Must have survived by at least 120 hours with clear and convincing evidence; if not, each is treated as predeceasing the other.

Question 11

Under the common law, how is death defined?

Answer 11

The irreversible cessation of circulatory and respiratory functions.

Question 12

Under the modern approach, how is death defined?

Answer 12

Brain death.

Question 13

What are issue?

Answer 13

All lineal descendants

Question 14

Who is a child of a marriage?

Answer 14

Any child of the parties is presumed to be of the marriage

Question 15

When are posthumously-born children considered the decedent’s?

Answer 15

There is a rebuttable presumption that a child born within 280 days of the deceased husband are the decedent’s. 300 under Uniform Parentage Act

Question 16

How is an adopted child treated?

Answer 16

Same as biological children.

Question 17

What is the stepparent exception?

Answer 17

Adoption by a stepparent establishes a parent-child relationship with full inheritance rights, but does not affect the parent-child relationship of the genetic parent.

Question 18

What is equitable adoption?

Answer 18

1. A relationship started during the child’s minority, with C&C evidence, that a legal barrier prevented adoption, OR
2. A foster parent agreed with the genetics to adopt the child and the foster parent treated the child as his own

Question 19

What are the effects of an equitable adoption?

Answer 19

The child can only inherit from, not through, the equitable adoptive parent, nor can the equitable adoptive parents inherit from the child.

Question 20

How are half-bloods treated in intestacy?

Answer 20

The same.

Question 21

Under the modern trend, when can children born out of wedlock inherit from the natural father?

Answer 21

1. Father subsequently married the natural mother;
2. Father held the child out as his own and lived with / provided support;
3. Paternity is proven be C&C evidence after the father’s death;
4. Paternity is judged during father’s life by preponderance of the evidence

Question 22

Under the Uniform Parentage Act, when can children born out of wedlock inherit from the natural father?

Answer 22

Presumption of paternity when father holds child out as his own, otherwise the child must bring a paternity action within three years of reaching the age of majority.

Question 23

Are posthumously-conceived children recognized as a child of the deceased parent?

Answer 23

No, but may be rebutted.

Question 24

Under the per capita with representation approach, how are shares calculated?

Answer 24

Property is divided equally among the first generation with at least one living member, then divided up from there

Question 25

Under the per stirpes approach, how are shares calculated?

Answer 25

Property is divided equally among the number of children of the ancestor who survive or leave issue who survive, and issue equally share the portion that the deceased ancestor would have taken if living.

Question 26

Under the UPC’s per capita at each generation approach, how are shares calculated?

Answer 26

Property is divided into as many equal shares as there are living members of the nearest generation of issue and deceased members of that generation with living issue.

Question 27

When there are no surviving issue or spouse, how is property distributed under the parentelic approach?

Answer 27

Follow collateral lines until a live taker is found; decedent’s property is distributed within that line.

Question 28

When there are no surviving issue or spouse, how is property distributed under the degree-of-relationship approach?

Answer 28

Calculate by counting number of relatives between the living taker and the decedent using the closest common ancestor.

Question 29

When there are no surviving issue or spouse, how is property distributed under the combined approach?

Answer 29

Those in a collateral line take to the exclusion of those in a more remote collateral line.

Question 30

When there are no surviving issue or spouse, how is property distributed under the UPC?

Answer 30

Decedent’s parents equally if both survive, or all to the parent if only one survives, then to descendant’s of the decedent’s parents, then to the decendent’s living grandparents, then to descendants of the grandparents, then nearest relative, then escheat to state