Topics for today

Rules for intestacy
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When A dies without a will, what happens to A’s estate?
Rules of intestacy are “default” rules—you can choose your
own rules, but the rules of intestacy are in place in case
you don’t
Sometimes, principles of intestacy are employed when
interpreting a will (e.g., who counts as a “child,” or who
has standing to challenge the validity of a will)
The simultaneous death problem

If a decedent’s heir apparent or devisee dies at the same
time as the decedent, what happens to that person’s share
1
of the estate?
Intestacy as default rules
(pp.71-72)
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Testacy
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Intestacy
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Decedent leaves a will that provides for the disposition
of property at death (also allows testator to select
guardians for minor children and an executor for the
estate)
Decedent leaves no will. The probate estate passes by
intestacy.
Partial Intestacy

Decedent leaves a will that disposes of only part of the
probate estate; the part of the estate not disposed of by
the will passes by intestacy.
2
UPC intestacy rules (p.73)
Facts
1990 UPC § § 2-101 to 2-106 (rev. 2008)
S; no D; no P
§2-102(1)(A) all S
S; D
§2-102(1)(B) all S only if all D are also S’s and S’s only kids
§2-102(3) $225K + 1/2 S if D are also S’s but S has others;
rest D
§2-102(4) $150K + 1/2 S if one or more D is not S’s; rest D
S; no D; P
§2-102(2) $300K + 3/4 S; rest P
no S; D
§2-103(a)(1) all D (per capita at each generation)
no S; no D; P
§2-103(a)(2) all P
no S; no D; no P; B or S
§2-103(a)(3) B or S (per capita at each generation)
no S; no D; no P; no B or S; G or
GD
§§2-103(a)(4) and (5) 1/2 paternal G; 1/2 maternal G or all
to maternal or paternal if no survivors on other side – per
capita at each generation
no S; no D; no P; no B or S; no G
or GD
§2-103(b) stepchildren
§2-105 escheat to state; therefore no “laughing heirs”; note:
no great grandparents
3
UPC-Indiana comparison
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
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If no living parents or descendants, spouse receives
entire estate under UPC and in IN
If the decedent has living descendants only through
the spouse, spouse still receives entire estate under
UPC but first $25,000 plus half of the remaining
estate in IN (with rest to descendants)
If no living descendants but a living parent, spouse
receives first $300,000 plus ¾ of the remainder
under UPC or first $25,000 plus ¾ of the remainder
under IN (with rest to parents)

Ind. Code §§ 29-1-2-1 and 29-1-4-1
4
UPC-Indiana comparison


UPC and IN include grandparents and
descendants of grandparents in their list of
potential heirs (i.e., aunts and uncles and
their descendants), but neither includes
more distant relatives.
UPC turns to step-children if the list of blood
relatives is exhausted and the spouse is
deceased (2-103(b)), but IN does not.
5
UPC §2-102: Share of
spouse
Facts
1990 UPC § § 2-101 to 2-106 (rev. 2008)
S; no D; no P
§2-102(1)(A) all S
S; D
§2-102(1)(B) all S only if all D are also S’s and S’s only kids
§2-102(3) $225K + 1/2 S if D are also S’s but S has others;
rest D
§2-102(4) $150K + 1/2 S if one or more D is not S’s; rest D
S; no D; P
§2-102(2) $300K + 3/4 S; rest P
no S; D
§2-103(a)(1) all D (per capita at each generation)
no S; no D; P
§2-103(a)(2) all P
no S; no D; no P; B or S
§2-103(a)(3) B or S (per capita at each generation)
no S; no D; no P; no B or S; G or
GD
§§2-103(a)(4) and (5) 1/2 paternal G; 1/2 maternal G or all
to maternal or paternal if no survivors on other side – per
capita at each generation
no S; no D; no P; no B or S; no G
or GD
§2-103(b) stepchildren
§2-105 escheat to state; therefore no “laughing heirs”; note:
no great grandparents
6
UPC-Indiana comparison
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UPC reduces spouse’s share if either
decedent or spouse has a child from a
previous marriage (2-102(3)-(4))
IN reduces spouse’s share if decedent had a
child from a previous marriage, but only
when the spouse and decedent had no
children together (29-1-2-1(c))
7
Howard and Wendy Brown
problem 1, page 77
Howard
Sarah
Brown
First
Husband
Wendy
Steph.
Brown
Michael
Walker
8
Problem 1, page 77
9
Problem 1, page 77

What about the possibility of the surviving spouse remarrying
and having more children?

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Let’s say the only children are the two children that Wendy and
Howard had together
If Howard dies, Wendy takes the entire estate even though she might
have children later with a new husband
Thus, Howard’s genetic children are protected if Wendy had another
child with a previous husband, but not if she has another child with a
later husband
Trying to anticipate later children would make for a much
more complicated statute—this is an example where the law
sacrifices some accuracy to avoid complexity
10
Problem 2, page 77
Brother
H
W
After one year of marriage, H dies. What is W’s share?
11
Legal Recognition of Same-Sex Couples
(August 2013)
WA
MT
ME
ND
VT
MN
OR
NH
ID
WI
SD
NY
WY
RI
CT
MI
PA
IA
NE
NV
OH
IL
UT
MD
WV
KS
MO
VA
KY
NC
TN
AZ
OK
NM
NJ
DE
IN
CO
CA
MA
AR
SC
MS
AL
GA
Same-Sex Marriage
TX
Civil Union/Domestic
Partnership
LA
FL
AK
HI
(p. 78)
12
The simultaneous death
problem
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
A is the heir apparent of spouse B, and A and B die
at the same time (e.g., in an automobile accident)
Does A inherit B’s estate (and then A’s heirs take),
or is A presumed to predecease B (and then B’s
heirs take)?
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Not an issue just for intestacy, but it tends to come up
much more in the setting of intestacy because a welldrafted will deals with the problem
The issue comes up especially in the context of spouses
13
What were the facts in
Janus (p.80)?
14
Janus v.
v. Tarasewicz
Tarasewicz,
Janus
482 N.E.2d 418 (Ill. App. 1985)
Jan
Alojza
Stanley
Theresa
15
Disposition of Stanley’s life
insurance proceeds


If the proceeds went to Theresa’s estate,
who would actually receive them under the
UPC?
Under Indiana’s intestacy statute, Theresa’s
estate would be divided among her parents
and siblings (Ind. Code § 29-1-2-1(d)(3) )
16
Simultaneous death (p.80)

Uniform Simultaneous Death Act (1940, rev. 1953):


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If “there is no sufficient evidence” of survivorship, the
beneficiary is deemed to have predeceased the donor.
Applicable in Janus and also in IN (Ind. Code § 29-2-141)
UPC §§ 2-104, 2-702 (1990, rev. 2008); Uniform
Simultaneous Death Act (1991):

Claimant must establish survivorship by 120 hours (5
days) by clear and convincing evidence.
17
When did Stanley and
Theresa die?
18
Did Theresa really die later
than Stanley?
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We’ll never know for sure—this case illustrates the
indirectness of methods for determining the timing of
death
But in the view of the court of appeals, there was
sufficient evidence for the trial court to conclude that
Theresa did die after Stanley

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Unlike some other courts, this court properly deferred to
the findings of the trial court
Did the intestacy statute carry out Stanley’s likely
intent by distributing his property to Theresa’s
family? Hence, we have the 120-hour rule.
19
Problems, page 86
20
Shares of descendants
Facts
1990 UPC § § 2-101 to 2-106 (rev. 2008)
S; no D; no P
§2-102(1)(A) all S
S; D
§2-102(1)(B) all S only if all D are also S’s and S’s only kids
§2-102(3) $225K + 1/2 S if D are also S’s but S has others;
rest D
§2-102(4) $150K + 1/2 S if one or more D is not S’s; rest D
S; no D; P
§2-102(2) $300K + 3/4 S; rest P
no S; D
§2-103(a)(1) all D (per capita at each generation)
no S; no D; P
§2-103(a)(2) all P
no S; no D; no P; B or S
§2-103(a)(3) B or S (per capita at each generation)
no S; no D; no P; no B or S; G or
GD
§§2-103(a)(4) and (5) 1/2 paternal G; 1/2 maternal G or all
to maternal or paternal if no survivors on other side – per
capita at each generation
no S; no D; no P; no B or S; no G
or GD
§2-103(b) stepchildren
§2-105 escheat to state; therefore no “laughing heirs”; note:
no great grandparents
21
Shares of descendants (1)
(p. 87)
Hall
1/3
1/3
1/6
1/6
22
Competing systems of
representation (p.88)
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English Per Stirpes
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Modern Per Stirpes
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Vertical equality – each line of descent treated
equally
Each line of descent treated equally beginning
at first generation with a living taker
1990 UPC

Horizontal equality – each taker at each
generation treated equally (“equally near,
equally dear”)
23
Indiana’s distribution:
Modern per stirpes
IC 29-1-2-1
Estate distribution
Sec. 1. (a) The estate of a person dying intestate
shall descend and be distributed as provided in
this section.
....
(d) The share of the net estate not
distributable to the surviving spouse, or the entire
net estate if there is no surviving spouse, shall
descend and be distributed as follows:
(1) To the issue of the intestate, if they are all
of the same degree of kinship to the intestate,
they shall take equally, or if of unequal degree,
then those of more remote degrees shall take by
representation.
24

Shares of descendants (2)
(p.87)
English per
stirpes
Modern per
stirpes
Per capita at
each generation
(1990 UPC)
25
Shares of descendants (3)
(p.89)
English per
stirpes
Modern per
stirpes
Per capita at
each generation
(1990 UPC)
26
Shares of descendants (4)
(p.90)
English per
stirpes
Modern per
stirpes
Per capita at
each generation
(1990 UPC)
27
Shares of descendants (5)
(p.90)
English per
stirpes
Modern per
stirpes
Per capita at
each generation
(1990 UPC)
28
Disinheriting a relative,
(p. 92)
T
A
1/2
1/2
B
“I hereby
disinherit my
brother, B”
1/2
Common Law
UPC § 2-101(b)
1/4
1/4
29
Shares of ancestors
and collaterals (p.92)
English
per stirpes
Modern
per stirpes
UPC §2106(c)
30
Table of
consanguinity
(p.93)
31
Problem 1, page 96
32
Problem 2, page 96
33
Problem 3, page 96
34
Problem 1 at Page 97: Half-Bloods
First
Wife
Second
Wife
F
A
B
C
D
 In almost all states and under the UPC, spouse (D) would take the entire share
(under UPC and in many states like IN, spouse would share with living parents).
 In a few states, spouse (D) would share with siblings (A & B), and in the
35
majority of those states, A and B would divide equally the sibling share.