Who is entitled to the property of an individual who dies intestate?
If there is only a surviving spouse
- They get everything.
If there is a surviving spouse AND parent OR child who is also an issue of the surviving spouse
- Surviving spouse gets $30,000 PLUS 1/2 remaining property.
If there is a surviving spouse AND an unrelated issue
- Surviving spouse gets 1/2 of the property
- Remainder goes to issue
If there is no surviving spouse, then it goes in this order
- Surviving issue
- Surviving parent(s)
- Surviving issue of deceased’s parents
- Surviving grandparents
- Surviving issue of grandparents
- Aunts/uncles
- Issue of aunts/uncles
- Commonwealth by escheat
Who qualifies as a spouse?
- Legally married partner (even if separated)
- who has not abandoned/been abandoned for a year or more,
- provided that there is no pending divorce action in which the grounds for divorce have been established.
OR
- A party who believes in good faith in the validity of a marriage that is in fact invalid. (Putative spouse)
What is required to “survive” a spouse?
Clear and convincing evidence that you survived the decedent, OR ELSE the property of each individual passes as though they had survived the other.
What the fuck is an issue?
- All lineal descendants, including children, grandchildren, great-grandchildren, but excluding the descendants of living lineal descendants (so not your living son’s child),
- PROVIDED THAT a parent-child relationship has been established.
How do you establish a parent-child relationship?
By showing:
- that the child was born in wedlock
- that the child was conceived before the married father’s death but born after it
- that the child was adopted
- that the child’s foster parents and stepparents
- began the relationship with the child during the child’s minority and continued throughout his life AND
- would have adopted the child but for a legal barrier (this must be shown by clear and convincing evidence). UNLESS
- the stepparent had other biological or adopted kids, in which case you MUST be in a will.
- that the child’s foster parent who died intestate
- had made an agreement to adopt with the natural parents AND
- had treated the child as his own.
- that the child was born out of wedlock but
- the father and mother married after the child’s birth;
- the father pays for the support of the child or holds the child out as his own; OR
- paternity is proved by clear and convincing evidence.
What are the ramifications of adoption?
- The child is deemed the issue of the adoptive parents (both for the child’s inheritance purposes and the parents’ inheritance purposes from and through the child).
- All inheritance rights between the natural parents and the child are curtailed, except when a stepparent who is married to the natural parent of the child adopts the child
- The inheritance rights between the child and those of his kin are curtailed, unless a familial relationship is maintained between the child and the kin.
How do you split up property among issue?
- If the surviving issue are all of equal degree of kinship, then the property passes per capita.
- If they are of unequal degrees of kinship, then the per capita with representation method is used.
What is the per capita with representation method?
- Identify the first generation in which at least one member survives the decedent.
- Identify whether the deceased members of that generation have then-living issues.
- If yes, include that deceased member in this calculation.
- If no, exclude them.
- Split up the property evenly among all of the living members of that generation AND all of the non-living members of the generation that have a living issue.
What intestacy rights does a stepchild have?
None, if the stepparent has other natural or adopted children.
