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Wills and Trusts
Santa Clara University School of Law
Spitko, E. Gary

Spitko, Wills and Trusts, Fall 2010

Chapter 2 Intestacy An Estate Plan by Default
Section A. The Basic Scheme
– intestacy
– most property that passes at death passes by will substitutes
– intestacy is what happens if you haven’t made an effective plan for what happens to your property at death
– about half of the states cut off the intestacy scheme at the 2nd line
– if you don’t’ have a first or second line relative, your property will escheat to the state in about half the states
– testate – die leaving a will that provides for the disposition of their property at death
– intestate – die without a will
– the law of intestacy governs the distribution of an intestate decedent’s probate property
– default rules – the background law that lawyers plan around
– we have an intestacy scheme to promote the donative intent of the property owner that hasn’t actually effectively expressed that intent
– helpful in protecting families from being impoverished
– also leads to administrative convenience
– simple, cheap and predictable
– in addition to identifying who will take the decedent’s probate property, wills can designate guardians for minor children, identify a trustworthy individual or trust company to administer the testate, reduce probate costs by waiving a required bond (or surety on a bond) and achieve tax savings
– partial intestacy – if a will disposes of only part of the probate estate, the part of the probate estate not disposed of by a will passes by intestacy
– generally speaking, the law of the state where the decedent was domiciled at death governs the disposition of personal property, and the law of the state where the decedent’s real property is located governs the disposition of real property
– §2-102 Share of Spouse
1. Entire Estate – IF 1) NO surviving parents, 2) NO surviving children of the decedent that are not from the surviving spouse, 3) AND the surviving spouse doesn’t have any children by someone other than the decedent.
– Fairly typical in most JXs.
– The thinking is that is what the decedent would want.
2. Entire Estate – IF surviving spouse and ALL joint children.
– The thinking is that the spouse will be a conduit of that property to eventually get it to those children.
– Also the spouse is generally older than children and may need the property more than the children.
3. The first $300,000 + 3/4 of any balance of the estate – IF no surviving children, BUT at least ONE surviving parent.
4. The first $225,000 + 1/2 of any balance of the estate – IF all children of the decedent are with the surviving spouse, but the surviving spouse has children by someone other than the decedent.
– The spouse takes less because they are likely to share that property with all of his/her children equally and some of the children are not the children of the decedent, so this breaks down the conduit theory a little bit. So the thinking is that they will give the children a little bit up front.
5. The first $150,000 + 1/2 of any balance of the estate – IF the decedent has one or more children that are not the children of the surviving spouse.
– The spouse takes less in this situation because the conduit theory does not even apply because the money would not pass to them through intestacy. The child of the decedent is not of the surviving spouse so they can be disinherited, so we want to give more to that child up front.

Note: The Meaning of Heirs and the Transfer of an Expectancy
– in the eyes of the law no living person has heirs
– the persons who would be the heirs of A, a living person, if A died within the next hour, are not the heirs of A but are the heirs apparent
– they have a mere expectancy
– this expectancy can be destroyed by A’s deed or will. It is not a legal “interest” at all. A’s heirs can be identified only at A’s death, and only by reference to the applicable statute of descent and distribution. Being named in a will or will substitute makes the person a devisee or legatee or beneficiary, not an heir
– a mere expectancy cannot be transferred at law

2. Share of Surviving Spouse
– under current intestacy laws in most states, the surviving spouse usually receives at least a one-half share of the decedent’s estate, an increase from the one-quarter or one-third of the estate that was typical a half century ago
– Under UPC §2-102(1), if all the decedent’s descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants, the surviving spouse takes the entire estate to the exclusion of the decedent’s descendants
– The amount the spouse takes is effected by the # of children.
– If there are children that survive the decedent the only other person who will take anything in intestacy is the spouse (none of the collateral (brother/sisters) of ancestral relatives)

Note: Same-Sex marriage, Domestic Partners, and Intestate Succession
– some states give some inheritance rights, but not all to partners under various names
– ME – has a domestic partner ordinance
– HI – reciprocal beneficiaries, don’t need to be a couple in the traditional sense, as long as you’re over 18 and not in another reciprocal beneficiary relationship
– you can become a reciprocal beneficiary with your mother or your sister and they would be entitled to the spouse’s share
– in 39 states you’re entitled to nothing
– in half dozen states you can maybe get an intestacy share
– in the states with marriage you can get your share
– no jurisdiction in America other than NH where you get inheritance rights based on how you function as a couple instead of your status
– NH has a common law marriage for intestacy statute, if you live with your spouse and you hold yourself out as married and you’ve been together for 3 years, NH will treat you as the common law spouse when they die
– In Determining if there was a Domestic partnership look to: (Assess these factors if domestic partnerships are allowed but there is NO registration system)
1. Did they cohabitate
2. Did they intermingle finances
3. Provide for each other through will substitutes
4. Hold themselves out as married
5. Have a commitment ceremony
6. Raise kids together

Questions, Note and Problem
– simultaneous death – a person succeeds to the property of a decedent only if the person survives the decedent for an instant of time
– Janus v. Tarasewicz
FACTS: Stanley and Theresa Janus unknowingly ingested Tylenol capsules laced with cyanide. Theresa was determined to have died second. Plaintiff brought the case against the insurance company and the administrators of Stanley and Theresa’s estates, claiming the proceeds of the insurance policy as the contingent beneficiary of the policy.
– if the wife survived the husband, she gets the life insurance policy and that property would move through intestacy
– if she didn’t survive the husband, the policy would go to the husband’s mother
HOLDING: In conclusion, we believe that the record clearly established that the treating physician’s diagnoses of death with respect to Stanley and Theresa Janus were made in accordance with “the usual and customary standards of medical practice.” The trial court found that these facts and circumstances constituted sufficient evidence that Theresa Janus survived her husband. It was not necessary to determine the exact moment at which Theresa died or by how long she survived him, and the court properly declined to do so.

Problems, Notes and Questions
– UPC §§2-104 and 2-702 provide that an heir or devisee or life insurance beneficiary who fails to survive by 120 hours (5 days) is deemed to have predeceased the decedent
– under the amended UPC and USDA, a claimant must establish survivorship by 120 hours by clear and convincing evidence
– General Rule – If Two Joint Tenants then the property is distributed one-half as though A survived and one-half as though B survived.

3. Shares of Descendants
– in all jurisdictions in this country, after the spouse’s share (if any) is set aside, children and descendants of deceased children take the remainder of the descendant’s property to the exclusion of everyone else
– son-in-law and daughters-in-law are excluded as intestate successors in virtually all states
– Share of Heirs OTHER than the Surviving Spouse – (Here each line of taking excludes the higher line).
– Any part of the estate not passing to the spouse, OR the entire estate if there is no surviving spouse passes in the following order to individuals that survive the decedent.
1. Decedent’s descendants by representation (Kids)
– This fits with our rule that provides for children/conduit theory
2. IF NO (1) THEN to the decedent’s parents equally
– This fits with the rule that parents take something if there are no kids.
3. IF NO (1) or (2) THEN to the descendants of the decedent’s parents (siblings), and by representation to descendants of the siblings. (First Line)
4. IF NOT (1) (2) or (3) THEN to the grandparents, or descendants of the decedent’s grandparents (great – aunts/uncles) (Second Line)
– Half to each side of grandparents equally, and if no grandparents survive then the share (1/2) passes to their descendants.
5. If NONE of the above then to the descendants of the decedent’s deceas

– all persons who are related by blood to the decedent but who are not descendants or ancestors
– first-line collaterals – descendants of the decedent’s parents, other than the decedent and the decedent’s descendants
– second-line collaterals – descendants of the decedent’s grandparents other than the decedent’s parents and their descendants
– if the decedent is not survived by a spouse, descendant, or parent, in all jurisdictions intestate property passes to brothers and sisters and their descendants
– if there are no first-line collaterals, the states differ on who is next in the line of succession:
– parentelic system – the intestate estate passes to grandparents and their descendants, and if none to great-grandparents and their descendants, and if none to great-great-grandparents and their descendants, so on down each line (parentela) descended from an ancestor until an heir is found
– a line is a certain ancestor and the descendants of that ancestor minus any lower line
– the 1st line is 1 generation up and all the descendants
– exclude ourselves and our descendants from the 1st line
– first parentela is the 1st line
– the numbering is one off because you start counting with the descendant
– in all jurisdictions we look to the first line
– degree-of-relationship system – the intestate estate passes to the closest of kin, counting degrees of kinship. To ascertain the degree of relationship of the decedent to the claimant you count the steps (counting one for each generation) up from the decedent to the nearest common ancestor of the decedent and the claimant, and then you count the steps down to the claimant from the common ancestor. The number of steps is the degree of relationship.
– laughing heirs – persons so distantly related to the decedent as to suffer no sense of bereavement, laughing all the way to the bank
– Half of the states have amended the rules of succession to abolish laughing heirs.
– a few states and the UPC have created a new class of heirs consisting of stepchildren, who take as a last resort if there are no surviving grandparents or descendants or grandparents or more closely related kin
– CA extends intestate succession not only to stepchildren but also to mothers-in-law, fathers-in-law, brothers-in-law, and sisters-in-law, but not to sons-in-law or daughters-in-law
– if the intestate leaves no survivors entitled to take under the intestacy statute, the intestate’s property escheats to the state
– Ohio and CA provide for step-children 1) if they had a relationship throughout the life, AND 2) the testator would have adopted the child but for a legal impediment, then the state provides for an intestate share for that step-child.

NOTE: Half-Bloods
– under UPC §2-107 (1990), a relative of the half-blood is treated the same as a relative of the whole-blood
– in a few states (TX, FL), a half-blood is given a one-half share
– in a few other states, a half-blood takes only when there are no whole-blood relatives of the same degree
– in OK, half-bloods are excluded when there are whole-blood kindred in the same degree and the inheritance came to the decedent by an ancestor and the half-blood is not a descendant of the ancestor

Notes and Questions
– parent-child relationship – “the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession”
– regarding adoption, a parent-child relationship exists between an adopted child and the adoptive parent (§2-118(a)), but not between an adopted child and the child’s genetic parents (§2-119(a))
– adult adoption – most intestacy statutes draw no distinction between the adoption of a minor and the adoption of an adult