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Wills and Trusts
University of California, Hastings School of Law
Creighton, James B.

Wills & Trusts- Spring 2013

Professor Creighton

v STATUS & INHERITANCE: 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


· INTESTACY- Status Used to determine to whom and in what order property from intestate decedent goes.

o §2-103 Share of Heirs other Than Surviving Spouse

§ Any part not passing to SS under §2-102, or entire estate if no SS è D’s descendants by representation.

· Note: Descendants and Issue are used synonymous

· INTERPRETING GOVERNING INSTRUMENTS: When document says “children” or “descendants” status used to determine who those people are

o § 2-705 Class Gifts Construed to Accord with Intestate Succession’ Exceptions

§ A class gift that uses a term of relationship to identify the class members [such as “my children or my descendants] includes those children or descendants in accordance with the rules for intestate succession regarding parent child relationship

Ø STATUS OF CHILDREN: Status as child must be established


o Genetic mother: the woman whose egg was fertilized by the sperm of a child’s genetic father

o Genetic Father: man whose sperm fertilized the egg of a child’s genetic mother

§ NOTE: the marital father might not be the genetic father under UPA- see UPA

o Marital Status Irrelevant: UPC §2-117: If individual is the genetic child of the man or women, there is a parent-child relationship even if the man and women were not married at the child’s birth


o Mother-Child Relationship §201(a): Established between woman and child by:

o Giving birth to child [unless done as surrogate]

o Adjudication of maternity

o Adoption

o Adjudication of maternity when another is the gestational parent due to ART arrangement (surrogacy)]


o Father-Child Relationship §201(b): Established between a man and a child by:

o Un-rebutted presumption of man’s paternity under §204

o Effective acknowledgment of paternity by the man under article 3, unless the acknowledgement ahs been rescinded or successfully challenged

§ Article 3 §301 et seq.: Voluntarily acknowledge paternity in a signed record

o An adjudication of the man’s paternity

§ Note: Genetic testing generally allowed both during alleged father’s life and posthumously because hair and cloths are acceptable for testing and no exhumation is needed.

o Adoption of the child by the man; or

o The man’s having consented to ART by a woman under Article 7 which resulted in the birth of the child


o Marital Child v. Non-Marital Child Treated Differently: purpose of probate is to move property from one generation to the next. If marital and non-marital children were treated equal there is inclination for fraudulent claims by people in order to inherit.


§ Man Presumed to be the father of a child if child:

· Born either

o During marriage OR

o Born within 300 [rationalization- # days of gestation period] days after fathers death or termination of marriage; and

· And Survives by at least 120 hours (or time period specified in governing instrument) which must be established by clear and convincing evidence. [see §2-702 for interpreting wills and other documents; §2-104 for intestacy]

§ Note: if child not born to married people or within 300 days of termination of marriage, marital presumption does not apply

§ Other Issues:

· Apply to Same Sex? è Depends on the state


§ Man Presumed to be the father of a child if:

· Voluntarily asserted paternity in a public record during post-birth attempted marriage, or

· During first 2 years resided in home and “openly held out the child as his own”

§ Note: this is harder to prove than marital child presumption. Reason: prevent fraudulent claims.

§ Class Gift Issue: Even if paternity proved, a class gift to Daniel’s Children by a 3rd person might not cover a non-marital child, even if the child is in fact Daniels.

· Example: If a grandfather says “I leave my property to Daniel and his children, and Daniel has children and another non-marital child of whose existence he does not know of, then this child is not included in the class gift because grandfather could not have known about this child.

· ADOPTED CHILDREN: Adopted Child is Child of Adopted Family [complete substitute for old family]

§ UPC §2-118 Adoptee & Adoptee’s Adoptive Parents

· Parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parent.

§ §2-119 Adoptee & Adoptee’s Genetic Parents

· Except as otherwise provided in (b)-(e), a parent- child relationship does not exist between an adoptee and the adoptee’s genetic parent.

· (b) Stepchild Adoption [see below]-

o Requires genetic parent and adopting parent to marry

· (c) and (d): A parent child relationship exists between both genetic parents and an individual who is adopted [by a relative of a genetic parent], or [after the death of both genetic parents], but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent

· (e) Child of ART or Gestational Child who is Subsequently adopted

· FOSTER CHILDREN & STEP CHILDRED: [UPC §1-201)5] foster children and stepchildren are not children of he decedent, therefore they do not take by intestate succession

o IF FOSTER PARENT ADOPTS CHILD: If foster parent adopts a child è like a regular adoption

o STEPCHILD ADOPTION EXCEPTON:–Allows Adoption to not Sever Genetic Parent relationship with child and genetic parent who did not marry adopting parent [and that genetic parents family], but for purpose of inheriting only [right to inherit from 3]

§ §UPC §2-119(b) Adoptee and Adoptee’s Genetic Parents

· A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:

o The genetic parent whose spouse adopted the individual; and

o The other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adop

rom or though.


· State Law Controls: State Law definition of marriage is controlling with respect to state law issues [Distribution of property by intestacy or testacy is a matter of state law]

o DOMA: DOMA states are not required to recognize same sex marriages which were held legally valid in the state in which they were married.

§ Effect on Move: If a same sex couple legally marries in a state and moves into a DOMA state, if one dies, the state of death does not recognize the marriage as valid.


o When Legal Marriage Ends:

§ UPC: upon order of dissolution. Filing a petition with the court does not end marriage. “Separated” is not a divorce, the marriage is still intact.

§ CA: Upon filing a petition in the court one is legally not able to inherit as spouse.

· COMMON LAW MATRIAGE (some states allow):

o Recognize Marriage if:

§ If you live together

§ Hold yourself as married

§ Have mutual intention to be married

o Note: no requirement of marriage ceremony

o Effect on Move from Common Law state to one without common law marriage: If created in a state that recognizes common law marriage, the move to a state which does not recognize it will not affect it. That state will recognize it as valid

· PUTATIVE SPOUSE; [CA recognizes]

o Uniform Marriage and Divorce Act §209

§ Any person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse… whether or not the marriage is prohibited or declared invalid. If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property… among the claimants as appropriate in the circumstances and in the interests of justice.

o Effect of Finding out you are not Legally Married è Must take steps to correct it

o Distinction from Common-Law Marriage: with putative spouses there was a marriage ceremony [they tried and thought they were married]

o Factors the Court Considers in Determining Share For Putative Spouse v. Legal Spouse

§ Term of putative marriage in comparison to legal marriage

§ Property of Estate

· How was it acquired

· When was it acquired