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Wills and Estates
University of Mississippi School of Law
Gershon, I. Richard

Wills & Estates-Gershon

Fall 2015

No book, all readings on twen


I. The Intestate Distribution Scheme

A. Introduction

1) Intestacy is the norm

2) Heirs vs Heirs Apparent

a. A person alive has no heirs, only heirs apparent.

3) Expectancies: what a child expects when their parent dies

a. An expectancy is not a property interest

b. Expectancy is not transferable, however a court of equity may rule otherwise.

4) Descent and distribution statute

Personal property = place of domicile

Real Property = where located

B. UPC Approach an intestate scheme

Who takes?

How Much?

1) Surviving Spouse

100% if no issue (children) or parents; or

100% if all decedent’s issue are also issue of surviving spouse and surviving spouse has no other issue; or

$200k + 75% of rest if no issue but surviving parent; or

$150k + 50% of rest if all issue are also issue of surviving spouse and surviving spouse has other issue;

$100k + 50% of rest if one or more issue not issue of surviving spouse.

2) Issue (kid)


3) Parents

Equally, or all to the survivor

4) Issue of Parents (brother/sister)


5) Grandparents/issue

50% to paternal grandparents or survivor; otherwise to their issue equally;

50% to maternal grandparents or survivor; otherwise to their issue equally;

If no surviving grandparents or issue on one side, all to the other side

6) Escheat to State


1) Tiered Approach – possible takers are listed in order, in tiers.

2) Community Property – intestate distribution presumes the jurisdiction does not recognize community property

3) UPC favors surviving spouse and state.

– In MS divided in = shares for spouse and child

II. Surviving Spouse: Who Qualifies

A. Marriage Requirement

1) Cohabitants – no

2) Common Law Marriage – if jurisdiction recognizes common law marriage

B. Same Sex Couples

1) Same sex marriage –

2) Civil Unions – Many of the same state rights and duties as married couple

3) Contract Claim

4) DOMA – States don’t have to give gay marriages full faith and credit

C. Putative Spouses – Marriage is either void or voidable. Ok for intestate schemes. (Spouse can still collect)

D. Married but separated – still qualify as a spouse for purposes of the intestate distribution scheme. Divorce is the bright line.

Spousal Abandonment – you may be disqualified from inheriting from the other spouse.

E. Survival Requirements

-If claimant fails to meet survival requirement, claimant is treated as if he predeceased the decedent.

1) Common law/USDA : To qualify as an heir the party had to prove by a preponderance of the evidence that he survived the decedent by a millisecond. This is a question of fact.

2) The Clear and Convincing Standard: Claimant must prove by a clear and convincing standard that he survived the decedent.

3) UPC 120-hour approach: Must prove by clear and convincing evidence that he survived decedent by 120 hours. (5 days)

Ex: (Under 120 jurisdiction) Brothers Pete and Repeat were sitting on a fence. Pete fell off, and died. Repeat was so shocked by his brother’s demise, that a few seconds after Pete died, Repeat died of a heart attack. Pete’s will gave all of his estate to Repeat if Repeat survived him. If not, Pete’s estate would pass to Carla. How should Pete’s estate be distributed?

A. All to Carla under the 120-hour rule.

B. One-half to Repeat and one-half to Carla under the S.C. Share Act.

C. All to Repeat (under common law)

D. It is impossible to tell without more evidence.

Determining time of death:

a) Common law: A person is dead when there is irreversible cessation of circulatory and respiratory functions.

b) Modern Trend: Irreversible cessation of total brain activity.

Mechanics of the survival requirement: 1) Did the claimant actually survive the decedent? 2) Did the claimant legally survive the decedent?

-Apply separately to each decedent.

III. Surviving Spouse: Calculating Share

A. Traditional intestate distribution Scheme: Surviving Spouse takes 100% only in the absence of any surviving issue, parents, or issue of parents. *this is for MS, bc in MS a spouse takes a child share*

If Surviving issue:

a) one surviving child: 50% of intestate property

b) more than one surviving child: typically surviving spouse takes 33%

c) if surviving parents or issue of parents (brother and sister of decedent): typically the surviving spouse takes 50%

d) small estates: gives the surviving spouse the first 50 or 100k then appropriate fraction

B. UPC Approach

1) Surviving issue and surviving spouse takes 100%: If the surviving spouse is also the parent of the surviving issue and the surviving spouse has no other issue.

2)Surviving issue and surviving spouse takes < 100%: If not all of the surviving issue are issue of the surviving spouse (surviving spouse take 100k + 50%)or surviving spouse has own issue (surviving spouse takes 150k + 50%).

3) No issue but surviving parents: 200k + 75%

4) UPC does not consider surviving issue of parents: Surviving spouse gets 100%

IV. Descendants/Issue: Calculating Shares

A. Determining which issue take:

1) Issue of predeceased children take in their place

2) If a person takes, his or her issue do not

3) Absent Adoption, only blood relatives qualify as heirs

B. Calculating shares where one or more of the decedent’s children predecease the decedent survived by issue

Per Stirpes (MS uses)

Per Capita w/


Per Capita at Each

Generation (UPC)

Where is the estate divided first?

First generation always

First g

s; cousins-no)

Ex. Homer and Marge had a son Bart. In 2007, Homer died when he ate too many doughnuts. In 2009, Marge married Moe. Later that same year, Moe adopted Bart. In 2010, Homer’s father, Ed, died intestate. Then Marge and Moe died a month later, also intestate. Who can Bart inherit from? (this ? does not apply step parent adoption exception)

A. Only Moe.

B. Only Marge

C. Only Marge and Moe

D. Marge, Moe, and Ed.

4) Step-parent adoption exception: Natural parent as same gender adopting parent loses from and through with child, but child keeps. Adopting Parent now has from and through with child in both directions.

5) Post death adoption: 2008 UPC revision, child retains the right to inherit through both natural parents if both are dead

6) Equitable Adoption: Natural parents transfer custody of their child to a couple who promises to adopt the child but who fails to do so legally.

a) Think of this as a breach of k COA.

b) That 1) by applying the doctrine courts should remember its equitable nature and apply it to promote equity and 2) that the doctrine should apply any time the child is led to believe that he or she was adopted.

7) Child born out of wedlock

a) Common law – Child of no one. Could not inherit.

b) UPC/modern trend: automatically has a child-parent relationship with mother, but inheritance from and through father requires proof of paternity.

Jurisdictions vary as ways to establish paternity.

8) Reproductive Technology: Posthumously conceived child:

UPC trend: Conceived child inherits from deceased parent if 1) while the parent was alive he or she authorized the posthumous use of the genetic material in a signed writing, or there is clear and convincing evidence of such consent; and 2) the child is in utero within 36 mo. of or born w/in 45 mo. of the parent’s death.

9) Surrogacy: child custody disputes have a res judicata effect on what constitutes the parent child relationship. Surrogate mother has no rights absent a court order to the contrary.

10) Same Sex Couples (lesbians)2008 UPC revisions – Child can have a relationship with birth mother and another if the other party 1) consented in writing to the birth mother’s assisted reproduction w/ the intent to be the other parent , or 2) functioned as a parent of the child within two years of the child’s birth.

VII. Gifts to Children

A. Advancements: Whether inter vivos gifts a decedent made to an heir should count against the heir’s share of the decedent’s probate estate. MS Sec. 91-1-17