slides 2 Flashcards
Inheritance and Status
The American system of inheritance is a status-based system – you inherit because of your relationship to the decedent – rather than a behavior-based system.
Exceptions – Homicide, abandonment and termination of parental rights
UPC §1-201. General Definitions.
Subject to the additional definitions contained in the subsequent Articles that are applicable to specific Articles, parts, or sections, and unless the context otherwise requires, in this Code . . .
(5) “Child” includes an individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant . . . (9) “Descendant” of an individual means all of his [or her] descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this code. (20) “Heirs,” … means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent. (24) “Issue” of an individual means descendant
[Note when drafting that the terms Descendant and Issue are synonymous and interchangeable and include not only children (1st gen) but also (great) grandchildren (later gens). They are limited to the testator’s single line of descent whereas “heirs” is far more inclusive, as we will see in Chapter 3. This will be important when drafting contingent bequests in case spouse and descendants all predecease testator.]
UPC §2-103. Share of Heirs other than Surviving Spouse
Any part of the intestate estate not passing to a decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
(1) to the decedent’s descendants by representation; . . .
Remember that when the Code uses “estate,” it means probate estate.
UPC §2‑705. Class Gifts Construed to Accord with Intestate Succession; Exceptions.
(b) A class gift [in a governing instrument] that uses a term of relationship to identify the class members [such as “my children” or “my descendants”] includes [those children or descendants determined] in accordance with the rules for intestate succession regarding parent-child relationships.
Defining spouse and children and descendants in the will is important, especially if we want to include those whose status might change by later events, etc. or who we want to specifically exclude, like children born to you that you have no contact with any longer.
UPC §2-117. No Distinction Based on Marital Status.
Except as otherwise provided in Sections 2-114 [parental rights terminated], 2-119 [adoption], 2-120 [ART], or 2-121 [ART], a parent-child relationship exists between a child and the child’s genetic parents, regardless of the parents’ marital status.
While there is no difference in treatment or rights between marital and nonmarital parent-child relationships, there are differences in what is needed to prove the parent-child relationship.
UPA §201. Establishment of Parent-Child Relationship
(a) The mother-child relationship is established between a woman and a child by:
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(1) [giving birth to child]
(2) Adjudication of maternity, e.g. in child support case
(3) Adoption
(4) [Adjudication of maternity when another is the gestational parent due to ART arrangement (surrogacy)]
UPA §201. Establishment of Parent-Child Relationship
(b) The father-child relationship is established between a man and a child by:
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(1) an unrebutted [or unsuccessfully rebutted] presumption of the man’s paternity of the child under Section 204;
(2) an effective acknowledgment of paternity by the man under [Article] 3, unless the acknowledgment has been rescinded or successfully challenged;
(3) an adjudication of the man’s paternity, e.g. in child support case;
(4) adoption of the child by the man;
[or]
(5) the man’s having consented to [ART] by a woman under [Article] 7 which resulted in the birth of the child
Proving Parent-Child Relationship– Not Involving Presumptions
Voluntarily acknowledging paternity in a signed record. UPA 301 et seq. The most common is the birth certificate. Once man acknowledges paternity on the birth certificate, there will rarely be a lawsuit to determine paternity.
An adjudication of paternity, whether during probate, support or other proceedings [though presumptions may have applied to reach adjudication]
Adoption
Written consent or adjudicated determination of intent to be the father to a child conceived via ART [with acknowledging paternity on birth certificate presumptively establishing parentage]
UPA §204 Presumption of Paternity –
Marital Father/Child
(a) A man is presumed to be the father of a child if:
(1) – (3) before the birth of the child, he and the mother of the child are married to each other and the child is born during the marriage or were married to eachother and the child is born within 300 days after its termination by death, annulment, declaration ofinvalidity, or divorce, or decree of separation; . . .
(b) A presumption of paternity established under this section may be rebutted only by adjudication under [Article] 6 [normally via genetic testing].
The presumption applies if the marriage was in apparent compliance with law, even if the attempted marriage is orcould be declared invalid and even if it is, in fact, later determined to be invalid.
UPA §204 Presumption of Paternity –
Nonmarital Father/Child
(a) A man is presumed to be the father of a child if:
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(1) – (3) [just discussed – applies to marital children]
(4) after the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, AND he voluntarily asserted his paternity of the child [e.g., in a public record, on the birth certificate or in a support proceeding] or
(5) for the first two years of the child’s life, he resided in the same household with the child AND openly held out the child as his own.
(b) A presumption of paternity established under this section may be rebutted only by an adjudication under [Article] 6 [normally by genetic testing].
Note that UPA uses “openly held out the child as his own” while some states use “openly and notoriously recognized the child as his.” They are similar.
UPA §602 - STANDING TO MAINTAIN PROCEEDING
… a proceeding to adjudicate parentage may be maintained by:
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(1) the child [whose status is in issue];
(2) the mother of the child;
(3) a man whose paternity of the child is to be adjudicated;
(4) the support-enforcement agency [or other governmental agency authorized by other law];
(5) an authorized adoption agency or licensed child-placing agency;
(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor;
(7) an intended parent under [Article] 8 [per surrogacy]].
Adopted Child Becomes Child of Adopting Family
In all states, the child/adoptive parent rule results in them completely substituting for the old one (child/genetic parents). “Steps into shoes”
UPC §2-119 – Adoptee & Adoptee’s Genetic Parents
(a) Except as otherwise provided in subsections (b) through (e), a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.
UPC §2-118 – Adoptee & Adoptee’s Adoptive Parents
(a) A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parent.
Adult Adoptions
General Rule = age of the adopted child is irrelevant to the ability to adopt – though there are jurisdictions that hold otherwise
Equitable Adoption
Some states have it and some do not; UPC is neutral - UPC § 2-122
To succeed in states that allow equitable adoptions, must prove by clear and convincing evidence that child stood from an age of tender years in a position exactly equivalent to a formally adopted child (but for the paperwork). Since equity is invoked, would also need to prove detrimental reliance.
UPC §2-120 Child Conceived by Assisted Reproduction Other than Child Born to Gestational Carrier
(a) [Definitions.] In this section:
(1) ‘‘Birth mother’’ means a woman … who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child’s genetic mother.
(2) ‘‘Child of assisted reproduction’’ means a child conceived by means of assisted reproduction….
(3) ‘‘Third-party donor’’ means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:
(A) a husband who provides sperm, or a wife who provides eggs, that are used for assisted reproduction by the wife;
(B) the birth mother of a child of assisted reproduction; or
(C) an individual who has been determined under subsection (e) or (f) to have a parent-child relationship with a child of assisted reproduction.
(b) [Third-Party Donor.] A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.
(c) [Parent-Child Relationship with Birth Mother.] A parent-child relationship exists between a child of assisted reproduction and the child’s birth mother.
UPC §2-104 Individual In Gestation
(a) [ … Individual in Gestation.] For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection (b), the following rules apply:
…
(2) An individual in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives 120 hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent’s death lived 120 hours after birth, it is deemed that the individual failed to survive for the required period.
UPC §2-120 Child Conceived by Assisted Reproduction Other than Child Born to Gestational Carrier
Posthumously conceived child
(k) [When Posthumously Conceived Child Treated as in Gestation.] If, under this section, an individual is a parent of a child of assisted reproduction who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of Section 2-104(a)(2) if the child is:
(1) in utero not later than 36 months after the individual’s death; or
(2) born not later than 45 months after the individual’s death.
Foster Children & Stepchildren
General rule: By definition (UPC 1-201(5)), foster children and stepchildren are not children of the decedent. Therefore, they do not take by intestate succession (except in a handful of statutes that put stepchildren at the bitter end).
What if foster parent or stepparent adopts child?
If foster parents adopt a child, it is like a regular adoption.
What if stepparent adopts child?
If a stepparent (who is married to one of the genetic parents of the child) adopts a child, in SOME states, there is a special rule dealing with the relationship between the child and the family of the “other” genetic parent.
UPC §2-705(b) – Class Gifts
Gifts from Parents
A class gift that uses a term of relationship to identify the class members [e.g. my children or my descendants] includes a child of assisted reproduction, a gestational child, and, except as otherwise provided in subsections (e) and (f), an adoptee and a child born to parents who are not married to each other, and their respective descendants if appropriate to the class, in accordance with the rules for intestate succession regarding parent-child relationships.
Interpreting Class Gifts in Wills & Other Instruments
Exception: Class Gifts from Nonparents
A child in a parent-child relationship will only receive from nonparent relatives if the genetic parent, a relative of the genetic parent, or the spouse or surviving spouse of the genetic parent or of a relative of the genetic parent functioned as a parent of the child before the child reached [18] years of age.
Similarly, for adopted children, the adopted child will receive intestate property from a nonparent only if:
(1) the adoption took place before the adoptee reached [18] years of age;
(2) the adoptive parent was the adoptee’s stepparent or foster parent;
or (3) the adoptive parent functioned as a parent of the adoptee before the adoptee reached [18] years of age.
