§ 3    Overview  [13-14]

 

         Intestate statutes identify who takes a decedent’s probate property:

 

·        if there is no valid will (total intestacy) or

·        to the extent that the will does not dispose of all of the property (partial intestacy).

 

Often these statutes also serve as models for other laws that mandate shares for disinherited spouses or forgotten children.  Intestate schemes also provide document drafters with a large variety of choices to present to their clients who want wills or trusts.

 

§ 4    Spouses  [15-18]

 

         A.  Who Is a Spouse? 

 

Whether an individual can inherit as a “spouse” is usually a question of each state’s domestic relations law.  Most states require a valid marriage between people of different genders.  Someone who has cohabited under a good faith, but mistaken, belief that he or she was married may be able to claim an intestate share as a putative spouse.  See Restatement (Third) of Property § 2.2 comment. e.  Vermont recognizes parties to a civil union as spouses.  See 15 Vt. Stat. Ann. § 1204(b).

 

         B.  The Spouse’s Share

 

The size of a surviving spouse’s share varies, depending upon both state law and who else survives.  If the decedent left no children, the spouse might get everything, or might share with the decedent’s parents.  If the decedent left children, the spouse will often share with them, taking half if there is one child, and one-third if there is more than one child.  Some states give the spouse a lump-sum amount and then divide the balance between the spouse and the children.  In other states, the spouse gets everything, and the children have to rely upon their surviving parent to serve as a conduit, leaving them anything that is left over at her death.

 

               1.   The Conduit Theory

 

The conduit theory may work well in the traditional situation of spouses who marry, raise children, and die without having divorced or remarried. When the surviving spouse is not the parent of some or all of the decedent’s children, however, the survivor may be less likely to favor those children and, thus, be less reliable as a conduit.

 

The UPC distinguishes between single-marriage and multiple-marriage situations.  If the surviving children are all children of the decedent and surviving spouse, the surviving spouse gets everything.  UPC § 2-102(1)(ii).  If the surviving spouse is the parent of the decedent’s children, but also has other children, the survivor takes $150,000, plus one-half of the balance. UPC § 2-102(3).  If the decedent left children who are not children of the surviving spouse, the survivor takes only $100,000, plus one-half of the balance. UPC § 2-102(4).

 

§ 5    Other Family Members  [18-30]

 

         A.  Qualifying to Take

 

               1.   Nonmarital Children

 

At common law, nonmarital children could not inherit from anyone.   Now they can always inherit from their mothers.  Jurisdictions define differently the situations in which nonmarital children can inherit from their fathers (and vice versa).

 

The Equal Protection clause of the 14^th Amendment protects nonmarital children to some extent.  Trimble v. Gordon, 430 U.S. 762 (1977), invalidated an Illinois statute that allowed nonmarital children to inherit from their fathers only if their parents eventually married and the fathers acknowledged the children.  In Lalli v. Lalli, 439 U.S. 259 (1978), the Supreme Court upheld a New York statute that allowed a nonmarital child to inherit from her father only if the man had been found to be the father in a paternity action brought both within two years of the child’s birth and while the man was alive.  These sorts of requirements seem harder to justify in an age of DNA analysis.

 

               2.   Adopted Children

 

                     a.   Identifying the Question

           

Questions can arise about whether the adopted person (the adoptee) can inherit from the adoptee’s genetic parent or through the adoptee’s genetic parent (for example, from a grandparent).  Similarly, there may be questions about whether the adoptee can inherit from the adoptee’s adoptive parent or through the adoptee’s adoptive parent.  The same sorts of questions can arise in the other direction, if the adoptee dies first (for example, whether the adoptee’s genetic grandparent can inherit from the adoptee).

                     b.   In General

 

At least in situations not involving adoption by stepparents, many states remove the adoptee from the families of the genetic parents and place her in a new family, that of the adoptive parents.  Some place the child in both families for all inheritance purposes.  Some allow the child to inherit from both her genetic and her adopted families, but cut off the genetic parents from inheriting from the child.

 

                     c.   Step-parent Adoptions

 

Many states have established rules governing inheritance in the special situation of a stepparent adoption.  There is no widespread agreement, however, on what those rules should be.  Pre-1990 UPC § 2-109 simply said that “adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent.”  The section has since been revised to distinguish between custodial and noncustodial genetic parents. In the context of a stepparent adoption, the full parent-child relationship is maintained with the custodial genetic parent, but the relationship with the noncustodial genetic parent’s family runs only to the benefit of the child.

 

            3.   Half-bloods

 

Two people are in a half-blood relationship when they have one common ancestor.  A few states discriminate against half-blood, as opposed to whole-blood, surviving relatives, but the distinction is dying out.

 

               4.   Degree of Relationship

 

To determine who among a decedent’s surviving relatives will inherit, you must consult the local statute.  Usually you will be well served by treating the decedent’s spouse as a special case and then applying the “look down, look up, look down, look up” (more formally, the “parentelic”) principle. When looking for heirs, first look down for descendants, following each child’s line down, stopping when you find a survivor.  If there are no descendants, look up to the parents. If none, look down again, to sisters and brothers and, if necessary, nieces and nephews.  If none, go up to the grandparents (on both sides). Then it’s down again, this time to aunts, uncles, and cousins. A large number of states follow this approach this far.

 

The UPC cuts off relatives more distant than descendants of the decedent’s grandparents.  UPC § 2-103.

 

When survivors get more remote than grandparents and their descendants, many states designate the “next of kin” to take the estate. The typical way of determining who is “next” is to count the number of people in the family tree connecting the decedent to the survivor.  The closest one “wins.”

 

         A.  Allocating Shares

 

               1.  The Problem

 

Two basic notions work both independently and together in various schemes for allocating intestate estates among the heirs. One, called a “per capita” approach, counts people. The other goes by either of two names, “per stirpes” or “by right of representation,” and views the family vertically, “by the stocks.” 

 

For a chart setting out the hypothetical Jones family and series of examples of the schemes described below, see pages 27-30 of the text.

 

               2.   Per Capita

 

Under a per capita approach, we simply give an equal share to each survivor identified. 

 

               3.  Representation: Strict Per Stirpes

 

The “strict per stirpes” approach divides at the first generation of descendants.  Lombardi v. Blois, 40 Cal. Rptr. 899 (Cal. App. 1964).  Those who prefer this system view the family tree in vertical terms.  As a result, however, persons closer to the decedent may get smaller shares than those more distant. Moreover, people in the same generation may get widely differing shares; their shares depend on how prolific their parents or grandparents were.

 

               4.   Representation: Per Capita with Representation

 

As a partial response to such uneven results, pre-1990 UPC § 2-106 and some states adopted a compromise interpretation of “representation.”  The estate is divided into shares at the first generation leaving survivors.  Older, “empty” generations are skipped. While sometimes called division by “representation,” this technique often is called “per capita with representation.” It is “per capita” at the first level that has survivors, and “with representation” after that.

 

               5.   Representation: Per Capita at Each Generation

 

A few states and revised UPC § 2-106 emphasize equal treatment of each generation.  Called “per capita at each generation,” this approach views the family horizontally. To use it, divide the estate in a series of steps. First, find the first generation with survivors and add the number of survivors plus the number of those who died leaving descendants who survive. Give each survivor in the older generation a share based on the total. Next, move down a generation and divide the remainder of the estate according to the same principle. How many survivors are there in this generation, and how many in this generation have died leaving descendants? Keep repeating the process until you run out of takers. This scheme treats equally those who are equally distant from the decedent.