Applicable Law
Law governing personal property: the law of the state where the decedent was domiciled at death.
Law governing real property: the law of the state where the real property is located.
Policy & Theory
· Constitutional Rights Under Hodel v. Ivring,the right to transmit property at death is a separate, identifiable stick in the bundle of constitutionally protected property rights and if this right is taken away the Takings Clause mandates compensation be paid.
· Dead Hand
o Shapira: A testamentary restraint to induce a person to marry within a religious faith is valid only if the restraint doesn’t unreasonably limit the beneficiaries opportunity to marry
· Goals of Inheritance law (1) Comply with the intent of the testator (2) Protection of Family (elective share) (3) Recognizing contribution spouses make to wealth accumulation (4) Maintaining the important role of property in the social order.
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Overview
Children
Uniform Probate Code
Oregon Revised Statutes
Issue only from spouse and D’t
2-102 Share of Spouse:
(1) If no surviving parents or descendents, or the only descendents come from the marriage with the spouse.
The wife gets it all
112.025. Share of surviving spouse if decedent leaves issue. (1) If all the decedents surviving issue are with the surviving spouse then
spouse gets everything.
No Issue
(1) If no surviving parents or descendents, or the only descendents come from the marriage with the spouse.
The wife gets it all
(2) If a parent of the dead guy survives but no descendent then:
200,000 plus ¾ of remainder.
112.035. Share of surviving spouse if decedent leaves no issue.
Then spouse gets everything
Spouse has issue from someone else
(3) If the all the dead guys descendents are with the spouse and the spouse has an additional child with someone else:
150,000 plus ½ of remainder
Doesn’t matter.
D’t has issue w/ someone else
(4) If dead guy has issue w/ someone else:
100,000 plus ½ of remainder
112.025(2). If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse,
spouse gets half.
Share of the Surviving Spouse
Uniform Probate Code: 2-102 Share of Spouse:
· (1) If no surviving parents or descendents, or the only descendents come from the marriage with the spouse.
1. The wife gets it all if:
· (2) If a parent of the dead guy survives but no descendent then:
1. 200,000 plus ¾ of remainder.
· (3) If the all the dead guys descendents are with the spouse and the spouse has an additional child with someone else:
1. 150,000 plus ½ of remainder
· (4) If dead guy has descendents with someone else:
1. 100,000 plus ½ of remainder
OREGON REVISED STATUTES
112.025. Share of surviving spouse if decedent leaves issue. If the decedent leaves a surviving spouse and issue, the intestate share of the surviving spouse is:
(1) If all the decedents surviving issue are with the surviving spouse then the spouse gets everything.
(2) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, spouse gets half.
§ Introduction
o Most People: Want to go the surviving spouse & some to children – especially if there is children from another marriage.
o Public Policy: To carry out the probable intent of the average intestate decedent/ Family protection
o Q-tip trust: all to the spouse and the remainder to someone else.
o Most Statutes: Wife gets half and kids get half.
o History: the idea was to keep property in the blood line, thus the wife would keep her dowry and the family line would receive the property.
§ Alternative living Situations
o Bigamy: Who knows. Should have wills.
o Common Law Marriage: If the state recognizes common law marriage then they are treated as husband and wife. Should have wills.
o Living in sin: Held themselves as married but never got married in Oregon – they are unmarried. Can try to argue the implied contract.Should have wills.
o Husband files divorce: if the divorce isn’t final the wife takes
§ Same sex Couples:
o Hawaii: register as reciprocal beneficiaries
o California: register as domestic partners.Same as a surviving spouse with separate property.
o Vermont & Connecticut:
o Massachusetts: Recognizes same-sex marriages.
o Federal tax benefits: none.
o Other states recognition of same sex marriages: Defense of Marriage act says other states do not have to recognize.
o Transsexual marriage: Kansas says no because the birth certificate says they were a man.
§ Survival: Simultaneous Death. Previously, a person succeeds to the property of a decedent only if the person survives the decedent by an instant of time. Now the UPC and ORS statutes provide that the spouse must survive by a specific # of hours (120) and a well drafted will provides survival by 60 or 90 days.
o Important: Life insuranceandIntestacy
o Uniform Simultaneous Death Act of 1940: If they die at the same time the beneficiary is deemed to have predeceased the decedent.
§ Joint Tenants: Half go as if A survived and half as if B survived.
o Old rule: Whoever dies first even by an iota then the money goes to the last dead persons heirs. Otherwise, each person is treated as having survived the other.
o UPC:A person must survive the other by at least 120 hours (5 days)
o Oregon Rule: the rule is that the spouse must survive by 120 hours to take under intestacy statute. But a well drafted will has a 60 or 90 day waiting period.
o Well Drafted Will: a well drafted will has a 60 or 90 day waiting period
USDA 1940
UPC 2-104 & 2-207
112.572 survival
If they die at the same time the beneficiary is deemed to have predeceased the decedent.
§ Joint Tenants: Half go as if A survived and half as if B survived.
It must be established by clear and convincing evidence that the specified person survived the other decedent by at least 120 hours.
–or they are deemed to have predeceased the decedent
It must be established by clear and convincing evidence that the specified person survived the other decedent by at least 120 hours.
–or they are deemed to have predeceased the decedent
Issue only with spouse
No Issue
Spouse has Issue with other
D’t has Issue with other
UPC 2-102
ORS 112.025
Wife gets all
Surviving Spouse
ORS 112.025
Wife gets all
No surviving parent
Wife gets all
Surviving parent
200K + ¾ remainder
UPC 2-102
Wife get all
UPC 2-102
150K + Remainder
ORS 112.025
Wife gets ½
UPC 2-102
150K + Remainder
Shares = Nearest gen. with living issue + dead issues with descendant’s in that generation
Living issue in nearest generation get 1 share
gg-son
2/9
Grandchildren divide up dead parents share among themselves.
There are as many shares as (1) surviving children plus (2) descendents died leaving issue
Per Capita
At each generation
UPC 2-106(b)
Modern Per Stirpes
Per capita w/ modern rep.
ORS 112.045 (1/2 states)
English Per Stirpes
Through the stocks
(14 states)
Grand-daughter
Gets 1/3
Grandson
Gets 1/3
Grandson
Gets 1/3
Dead grand daughter
Dead grand son
Dead son
dead son
Dead girl
Decedent
Deceased issues shares combine
nd descendents and then next of kin
Public Policy: Which is more appropriate – going to distant relatives or let it go to the state.
UPC 2-103 (Parentelic). If there is no surviving spouse, or any part of the estate passing to someone other than the spouse the amount left passes in the following order:
ORS 112.045. (Hybrid). (follow a degree of relationship system and use the parentelic system to break a tie) The part of the net intestate estate not passing to the surviving spouse shall pass:
(1) To the decedent’s descendents in representation
(2) If no descendent, then to the parents
(3) To the descendents of the dead guys parents
(4) Half to paternal grandparents (or descendents if grandparents are dead) and half to Maternal grandparents (or descendents if grandparents are dead) (if one line is gone, then all to the other line).
(1) To the issue of the decedent. If the issue are all of the same degree of kinship to the decedent, they shall take equally, but if of unequal degree, then those of more remote degrees take by representation.
(2) If there is no surviving issue, to the surviving parents
(3) If there is no surviving issue or parent, to the brothers and sisters of the decedent and the issue of any deceased brother or sister of the decedent by representation. If there is no surviving brother or sister, the issue of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degrees take by representation.
(4) If there is no surviving issue, parent or issue of a parent, to the grandparents of the decedent and the issue of any deceased grandparent of the decedent by representation. If there is no surviving grandparent, the issue of grandparents take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degrees take by representation.
(5) If, at the time of taking, surviving parents or grandparents of the decedent are married to each other, they shall take real property as tenants by the entirety and personal property as joint owners with the right of survivorship.
Next of Kin: count up to parents & then down, or up to grand-parents and down, or up to great-grandparents and then down. Look at the superscripts.
Second Line
2 grandparents
1 Parents
First Line
Third Line
2 Grandchildren
1 Children
4 Grandnieces
Grandnephews
3 Nieces & Nephews
2 Brothers & Sisters
8 Second cousins twice removed
7 Second cousins once removed
6 Second Cousins
5 First cousins
once removed
4 Great Aunts
Great Uncles
3 Great grandparents
6 First cousins twice removed
5 First Cousins once removed
4 First Cousins
3 Aunts / Uncles
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