To die with a will is to die testate. Thus, to die without a will is to die in intestacy. There are intestacy statutes that determine what happens to possessions after death (and many will provisions and definitions are structured in accordance with the statute).
Default Plan
Why do people fail to get a will?
- Fear of death
- Cost
- Time
- Inexperience or lack of knowledge
- Use of will substitutes
Purpose of intestacy statutes
These statutes attempt to carry out the intent of a typical decedent. Of course, no person is alike, and these preferences might not be fitting for each family. That is why lawyers generally encourage their client to have a will. Typically, the statute prioritizes surviving spouse, then children, then parents. The issue is that in today’s society it may be difficult to determine who gets what. For instance, technology has shaped how families can have kids, cohabitiation has become common, etc. If the decedent has no relatives as described in the statute, their belongs revert back to theh state.
Uniform Probate Code
Of course, each state has a probate code. Where the decedent was domiciled typically outlines the disposition of person property, while real property is determined by the location of the property. However, many states have adopted significant parts of the Uniform Probate Code. Careful consideration of your state’s probate code is necessary and comparision with the UPC might be helpful.
Structure of Succession
Surviving Spouse
A spouse’s share can range from none to all. Generally, the surviving spouse receives at lease one-half of the decedent’s estate. According to the UPC, if the decendant and spouse shared all the same children, then the spouse will take the entire estate. However, if teh surviving spouse has a child with someone other than the decedent, then the surviving spouse receives a smaller share—to account for the potential of a step-parent favoring their children over the decedent’s. Likewise, if there are no children, the spouse receives a smaller share as the estate is used with the decedent’s parents (if any).
What if there is no surviving spouse? That is, what if the spouses die at the same time. The Uniform Simultaneous Death Act answered “if there is no sufficient evidence” of the death order, neither spouse survives the other and neither received an inheritence from the other. Ultimately, the assets were divided in half and treated as though one spouse or the other had survived respsective of the assets. The challenge here is determining whether the spouses died simultaneous.
Decendants
Representation
Children and descendants of deceased children will take the remainder of what the surviving spouse does not take. The issue with this is that there are three different systems on how much decendants of deceased children will take. The three systems include: (1) Engligh per stirpes or strict per stirpes, (2) modern per stirpes or per capita with representation, or (3) per capita at each generation (1990 UPC).
(English) per stirpes: The share is divided equally at the child level (each kid gets an equal share). Iowa uses this approach.
Modern per stirpes: If any children survive the decedent, then the result is the same as per stirpes. However, if no children are surviving, shares are divided equally amongst the grandchildren (or the next surviving level).
UPC: The first surviving generation will take their equal share. Decendants of that surviving generation will then take the reminder.
Ancestors, Collaterals, and Others
If there is a child, ancestors do not take. If there is no child, half of the states require the spouse to share with parents, while the other half of states allows the spouse to take it all. Finally, if there are no spouse, parents, or children, collateral kindred (anyone else related by blood) will receive their share. Many states limit collateral kindred to only those related by parents (brothers, sisters, neices, and nephews, etc.) or grandparents (aunts, uncles, cousins, etc.) to prevent laughing heirs. Other states allow stepchildren and in-laws to take a share.
With the limitations, if no-one else can take, the remainder goes to the state. This is called an escheat.
Disinheritance
Some states require disinheritance by dividing all the property to others. Many states now allow a negative will stating that certain individuals will receive none of the property (but be specific).
Children
Adopted Children: Formal
Hall v. Vallandingham
540 A.2d 1162 (Md. 1988).
Question
Whether an adopted child can take an inheritance from their natural parents.
Rule
Adopted children may not receive a dual inheritance. Thus, adopted children only receive an inheritance from their new family.
Holding
No inheritance will be received, affirmed.
Facts
Earl Vallandingham had four children then passed, leaving a widow. The widow remarried and the new husband adopted the four children. Earl’s brother then died intestate with no decendants. Thus, the four children of Earl sought to receive an inheritance by representation of their natural father.
Analysis
There is no dual inheritance. If there were, this would give adopted children a surperior status. There is no right to receive an inheritance. Instead, adopted children will receive their inheritance as decendants of the adopted family.
Additional Notes
In the majority of states, adopted children inherit from adoptive relatives and also from prior relatives if the child is adopted by a stepparent. See UPC 2-119. The result in Hall is a minority of states. A few other states in the minority allow an inheritance from both adopted and natural parents.
Adopted Adults
Adopted adults are generally treated the same way as adopted children, no difference. The main issue arises when people are using adoption to prevent will contests againt other apparent heirs.
Equitable Adoption and De Facto Parentage
O’Neal v. Wilkes
439 S.E.2d 490 (Ga. 1994).
Question
Whether O’Niel was virtually adopted by Cook.
Rule
A contract of adoption can only be made by parties who have the authority to contract. This includes the individual receiving the adopted individual and the parent or guardian of the adopted individual.
Holding
O’Niel’s aunt did not have the legal authority to enter into the adoption contract. Thus, the adoption contract was invalid, and O’Niel cannot claim a share of Cook’s estate.
Facts
O’Niel was born out of wedlock and about 8 years later her mother died. O’Niel’s father made no effort to legitimize her. After her mother’s death, O’Niel was given first to her aunt Campbell (on her mother’s side), then to a lady hoping to adopt, then to her aunt Page (on her father’s side). A short time later, the Cooks sought a child and came for O’Niel. Mr. Cook then cared for O’Niel, paid for her education, called her his daughter, and called her children his grandchildren.
When Mr. Cook died intestate, O’Niel sought a share of the inheritance as an adopted child.
Analysis
There are three levels of authority. First, a parent or guardian can give the authority for adoption. Second, a custodian can have the authority for some things, but not to give a child up for adoption. Third, a family member fulfilling familial duties has no authority. Although page was a paternal aunt, she had no authority to contract for the adoption of O’Niel (acting only out of a familial duty). Thus the contract was invalid.
The dissent would abandon the contract theory and adopt a more equitable result. The child was put in a situation where she was essentially adopted. She grew, and left the home as any child in an adopted scenario would have done. This ought to have been enought to find an adoption.
Additional Notes
The doctrine of equitable adoption is that a husband and wife enter into an informal adoption agreeing to take the child. If the child is treated as an adopted child, then the husband and wife are estopped from denying a formal adoption occurred. A majority of states recognize the doctrine while a minority deny it.
This doctrine applies mainly to foster children and stepchildren.
Posthumous Children
A child conceived during the father’s life but born after his death is a posthumous child. The traditional rule is that a posthumous child is entitled to a share of the estate.
Nonmarital Children
Traditionally, children born out of wedlock were not to receive a share of the inheritence from the father or mother. Now, every state permits the child to receive a share from the mother’s estate. Many states vary as to whether a child is still to receive a share of the father’s.
Reproductive Technology
Reproductive technology has allowed parentage to occur even after both the mother and father has passed. This leads to questions about whether these children are entitled to a share of the estate intestate. For instance, what happens if a child is posthumously conceived? That is, the parent dies before the child is conceived and birthed. The child is technically born out of marriage (marriage ends on death, legally).
Woodward v. Commissioner of Social Security
760 N.E.2d 257 (Mass. 2002).
Qeustion
Whether a posthumously born child may have the same rights intesacy as natural born children.
Rule
A posthumously born child may have similar rights if: (1) there is a genetic relationship between the child and the deceased parent, and (2) the surviving parent must demonstrate that the deceased parent consented to the posthumous conception and to the support of the child. These rights may be further limited by time (not at issue in this case).
Holding
Based on the rule above, rights may be permitted in limited circumstances. Forwarded to the District Court to determine whether the mother has any additional evidence of consent to conceive and support the child.
Facts
The Woodwards had been married for a few years without children when the father was diagnosed with cancer. Fearful that he would become infertile due to the treatment, the couple arranged with a sperm bank to preserve the ability to have children. Unfortuantely, the treatment failed and the father died. The mother then used the deposit to have two twin girls. The mother then sought to seek social security benefits which were ultimately denied because the children were conceived after the father’s death.
Analysis
There are three state interests (1) interest to have the best benefit of the children, (2) conduct the intestacy proceedings orderly, and (3) protect the reproductive rights of the deceased parent.
The first interest allows posthumously born children to claim intestacy shares. Just because a child is born out of marriage (dying legally ends marriage), does not mean a child should have less rights than a child born in marriage.
The second interest ensures that children are the genetic children of the deceased. Genetic testing increases claims but also accurately determines whether there is a genetic connection. Time will also bar claims (but that is not addressed in this opinion).
Finally, the third interest is to protect the reproductive rights of the deceased parent. Maybe the parent agreed to the contingencies (saving in case of infertility), but there was no consent as to when or whether the parents would have children. This is especially true when the genetics may be saved for decades—by that time the surviving spouse may have remarried and the deceased parent might not have consented. To protect this interest, there should be consent both the conception and to the support of the child. In this case further evidence could be shown (but the court does not describe what evidence is sufficient).
Additional Notes
Reproductive technology also raises questions for surrogacy for opposite-sex married couples and assisted reproduction for same-sex couples. Who is the parent when the sperm, egg, and womb may be provided by others outside of the relationship. Who has parental rights? How do you determine whether the child may take an inheritance of the intended parents?
Advancements and Hotchpot
An advancement is an advance payment of the estate during the life of the decedent. Traditionally, the heir must show that any lifetime gifts were not to count against the estate. Under modern law, most states say there is no presumption of an advancement.
A hotchpot occurs if there is an advancement. The child who received the gift adds that total into the estate. This total balance is called the hotchpot. The estate then divides between the children equally. Because the child had already received the gift, they take less of the remaining balance in the estate.
Bars to Succession
Slayer Rule
The slayer rule states that a killer of the deceased is not permitted to take a share of the estate. As a result, the slayer is treated as if he or she predeceased the decedent. There are complications to this rule, however. For instance, what if the decedent asked the slayer to commit the murder? What about the children of the slayer, do they retain their share of the estate? What if the decedent creates a will stating that a slayer is to take, even if the slaying occurs?
Disclaiming
A disclaimer is when an individual declines their inheritance. There are three primary reasons why an individual may disclaim their inheritance. (1) Tax reasons (keep from going into a new tax bracket). (2) Keep the inheritance in the family instead of creditors. (3) Family planning (either to not meet a condition, there’s a grudge, managing is a hassle, children could receive a larger share, etc.).
The limitations here is that a disclaimer cannot be used to avoid a tax lien or to maintain medicaid benefits.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
