slides 3 Flashcards
Share to Surviving Spouse (SS)
Share is “off the top” with remainder going to other heirs
General Rule – SS (considered an heir even though not by blood) gets all or some flat dollar amount + a percentage (1/2 or 3/4) depending on who other survivors are
- Descendants of D and SS (marital children)
- Descendants of D only (D-only descendants)
- Descendants of SS only (SS-only descendants)
- Parents of D
Non-UPC states may not have base amounts and will have different percentages that depend on different surviving family members, such as siblings or nieces/nephews. Different rules for personal property and real estate.
In Community Property states, surviving spouse is entitled to his/her half by operation of law. Only the decedent’s separate property and his/her half of community property is divided by the intestacy statute, usually with the latter going entirely to the SS.
UPC Section 2‑102. Share of Spouse
The intestate share of a decedent’s surviving spouse is:
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(1) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the decedent; or
(ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first [$300,000], plus three‑fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) the first [$225,000], plus one‑half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(4) the first [$150,000], plus one‑half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
Section 2‑103. Share of Heirs other than Surviving Spouse.
(a) Any part of the intestate estate not passing to the 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 designated below who survive the decedent:
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(1) to the decedent’s descendants by representation;
(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;…
(4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
(A) half to the decedent’s paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and (B) half to the decedent’s maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by representation;
(5) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives on the side with one or more surviving members in the manner described in paragraph (4).
§2-105. NO TAKER
If there is no taker under the provisions of this Article, the intestate estate passes to the [state].
Intestacy – When It Applies
No will or no valid will (will is invalidated for lack of decedent’s capacity, etc.)
Will does not dispose of all the decedent’s property (partial intestacy)
Unexpectedly with respect to nonprobate transfers and no valid will in place
- Beneficiary is decedent’s estate
- Intended beneficiary predeceased decedent and no alternate or substitute taker entitled to take
- Joint tenants sever joint tenancy inter vivos
- Simultaneous death of decedent and intended beneficiary
- Divorce
- Murder
Successful nonprobate transfers are disposed of according to the terms of the governing instrument (e.g. beneficiary designation, JTWROS, terms of trust} and thus are NOT included in probate estate.
Share to Lineal Descendants
Entitled to portion remaining after surviving spouse takes statutory amount
By blood and adoption only – not to stepchildren and not to surviving spouses of lineal descendants (with unlikely-to-occur exception in UPC 2-103(b))
Compare spouse of decedent
Definitions of “child” and “descendants/issue” discussed in chapter 2 apply here
Descendants take to exclusion of collateral heirs, like decedent’s parents, siblings, nieces/nephews
Purely status-based; behavior and intent otherwise is irrelevant
Share to Ancestors and Collateral Heirs and Escheat to State
Statutes provide how property passes up through certain levels – often grandparents and descendants of grandparents (or great-grandparents and descendants of great-grandparents).
Some state statutes go farther, granting property through:
Parentellic Inheritance, where the pattern of splitting between the maternal and paternal side continues, with each side given equal weight, or
Degree of Relationship Inheritance, where the individuals who are the fewest steps removed on the table of consanguinity take, regardless of whether they are on the maternal or paternal side.
A handful of states put stepchildren at the bitter end.
At the end of the list of heirs, the property escheats to the state.
Also note that some states give relatives who share one common ancestor but not two (half-bloods) a whole share, while others give them half of what a full-blooded relative would take.
Three Representation Methods
Only important if heirs die out of order, i.e., kids die before parents, and leave descendants
PURE PER STIRPES
- Determined by giving an equal amount to each family stock determined at “child” generation
MODERN (or MODIFIED) PER STIRPES (PER CAPITA WITH REPRESENTATION) or 1969 UPC PER STIRPES
- Determined by giving an equal amount to each family stock determined at first generation where there is a survivor
PER CAPITA AT EACH GENERATION (Current UPC)
- Determined by giving each surviving person in a generation an equal amount
Do We Need Representation Rules?
Question - Upon D’s death, did:
(i) any of D’s children predecease him/her; and
(ii) leave at least one descendent?
If the answer to either of these is “no,” then all three methods distribute per capita to those surviving. [Note that if a child predeceased D without children, then that line receives nothing.]
If the answer to both of these is “yes,” then we must determine multi-generation succession by one of the three methods.
Division Per Stirpes
UPC 2-709(c)
If a governing instrument calls for property to be distributed “per stirpes,” the property is divided into as many equal shares as there are
(i) surviving children of the designated ancestor and
(ii) deceased children who left surviving descendants.
Each surviving child, if any, is allocated one share.
The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.
Division “Per Capita at Each Generation” – The Current UPC
UPC §2-709
If an applicable statute or a governing instrument calls for property to be distributed “by representation” or “per capita at each generation,” the property is divided into as many equal shares as there are
(i) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants
(ii) and deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share.
The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date.
Inter Vivos Transfers by Decedent to Heirs – Are They Advancements or Gifts or Loans?
Gift is the default (reversal of common law)
No impact on amount received in inheritance
Loans are usually well-documented and provide repayment terms and interest rates. Sometimes collateral is pledged also.
Asset of the estate and must be repaid
Advancement is a prepayment against inheritance
Will reduce inheritance but does not have to be repaid if advance was greater than inheritance
Can be proven only by very specific documentary evidence.
UPC §2‑109. Advancements
(a). If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if:
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(i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or
(ii) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
[Note that a written acknowledgment coming from the heir does not have to be contemporaneous.]
[Note that a writing is required to meet burden of proof – oral evidence is not sufficient.]
Section 2‑103. Share of Heirs other than Surviving Spouse.
(b) If there is no taker under subsection (a), but the decedent has:
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(1) one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse’s descendants by representation; or
(2) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.
