Intestacy and children


In our consideration of the rules of intestacy, we’ve
seen that spouses are most favored, with children
being next favored.
Today, we consider what it means to be a “child.”


The simple case exists when you have a married couple
that has a child together without the involvement of a
third party.
But what if the child is adopted? What if the child is born
or conceived after the death of a genetic parent? In
today’s class, we’ll look at how these differences affect
the child’s rights to inherit.
1
What were the facts in Hall
v. Vallandingham (p. 97)?
(Is it really true that the “primary purpose
for adoption . . . is inheritance rights?”)




Earl and Elizabeth had four children.
Earl died, Elizabeth remarried, and her new
husband, Jim, adopted the four children.
This case arose because Earl’s brother died
intestate. The brother had no children, no spouse
and no parents.
To whom should the brother’s estate pass?

The brother’s siblings and their descendants
2
Hall v. Vallandingham (p. 97)
Hall
v.
Vallandingham
540 A.2d 1162, (Md. Ct. Special App. 1988)
Sibs
Sibs
Sibs
Wm.
Jr.
Earl
Eliz.
Jim
Biological Children of Earl,
Adopted by Jim
3
What should happen to the
sibling share that would have
gone to Earl?

Should it go to Elizabeth, Earl’s widow since his
estate would pass to her through intestacy?


No—she’s an in-law
Can Earl’s children inherit?

No—under Maryland trusts and estates law, they lost
their right to inherit by virtue of their adoption by
Elizabeth’s second husband

If the children cannot inherit from Earl after the adoption, they
also cannot inherit through Earl after the adoption
4
Did the court correctly
interpret Maryland law?

What textual argument can we make, and Earl’s
children did make, that they were heirs?



“On adoption, a child no longer shall be considered a child
of either natural parent, except that upon adoption by the
spouse of a natural parent, the child shall be considered
the child of that natural parent” (current law)
“Upon entry of a decree of adoption, the adopted child
shall lose all rights of inheritance from its parents and from
their natural collateral or lineal relatives” (prior law)
How did the court reconcile the two statutes?

The current statute just uses different words to say the
same thing—wouldn’t want to give adopted children
greater rights than other children
5
What result under the UPC?

b) [Stepchild Adopted by Stepparent.] A parent-child
relationship exists between an individual who is adopted by
the spouse of either genetic parent and:


(1) the genetic parent whose spouse adopted the individual; and
(2) the other genetic parent, but only for the purpose of the right of
the adoptee or a descendant of the adoptee to inherit from or
through the other genetic parent.


Which approach—Maryland or UPC—does a better job of
reflecting the likely intent of someone like Earl’s brother?


UPC 2-119
Probably the UPC
Besides the Maryland and UPC approaches, some states
allow adopted children to inherit from both adoptive and
genetic parents even when the adoptive parent is not a
stepparent
6
UPC and adopted children
If an adopted child can inherit through the genetic parent
after being adopted by a step-parent, why can’t the
genetic parent inherit through the adopted child? Why is
it a one-way street?
Inheritance would become too complex if genetic relatives as well
as adoptive relatives could inherit from or through the child;
Is not clear that this is what the intestate decedent would want;
and
If adoption records are sealed, it may not be possible for the
adopted child to prove who the genetic relatives are and vice
versa.
7
Indiana law (same as Hall)

For all purposes of intestate succession, including succession
by, through, or from a person, both lineal and collateral, an
adopted child shall be treated as a natural child of the child's
adopting parents, and the child shall cease to be treated as
a child of the natural parents and of any previous adopting
parents. However, if a natural parent of a child born in or
out of wedlock marries the adopting parent, the adopted
child shall inherit from the child's natural parent as though
the child had not been adopted, and from the child's
adoptive parent as though the child were the natural child.
In addition, if a person who is related to a child within the
sixth degree adopts such child, such child shall upon the
occasion of each death in the child's family have the right of
inheritance through the child's natural parents or adopting
parents, whichever is greater in value in each case.

Ind. Code 29-1-2-8 (emphasis added)
8
Adoption of adults


We’ve seen that you can make a child your child for
purposes of inheritance by adopting the child.
Can you make an adult your child for purposes of
inheritance by adopting the adult?



Maybe you want your spouse or partner to be able to
receive your share if you predecease your spouse or partner
Most states say yes, but some states will prevent the
adoption (p.102)
Note the value of adoption also for fending off challenges to
the validity of a will


T wants to leave estate to partner in T’s will, and T’s siblings are the
apparent heirs and can challenge the will
If T adopts partner, then partner replaces T’s siblings as the
9
apparent heir; T’s siblings no longer can challenge the will
Adoption and wills


We’ve seen that you can make a child your child for
purposes of inheritance by adopting the child.
Does an adopted child also step into your shoes as a
genetic child for purposes of your share under
someone else’s will (e.g., child adopts grandchild)?



Traditional trusts and estates law said no—testators who
were “strangers-to-the-adoption” were not viewed as
intending that the adopted children take
Current law includes a presumption that adopted children
will be treated as genetic children. If testators do not want
adopted children to be treated as genetic children, they
need to say so (something to remember when advising
clients whose wills you draft) (page 103)
10
What if the adopted child is an adult?
What were the facts in
Minary, p. 103




Amelia Minary and her husband had three sons, James,
Thomas and Alfred
In her will, Amelia set up a trust to support her husband and
sons, with the trust terminating after all four died. When the
trust terminated, the corpus would go to her surviving heirs
(making rules of intestacy necessary to interpret her will and
trust)
Amelia died, triggering the trust
The husband died first, then James died without
descendants, Thomas died after having two children and
Alfred died after adopting his wife (whom he married two
years after his mother’s death)
11
Minary v. Citizens Fidelity Bank, p.103
Minary419
v. S.W.2d
Citizens
Fidelity
Bank
(1)
340 (Ky. 1967)
Amelia
Mr. Minary
James
Thomas
Alfred
1934
Myra M.
Adopted 1959
Thomas
Jr.
Amelia
M.G.
12
Dividing the trust in Minary

How should Amelia’s trust be divided? Who were
the heirs, and what were their shares?

Should Thomas’ two children each take 1/2 of the estate,
should Thomas’ two children and Alfred’s wife each take
1/3 of the estate, or should Alfred’s wife take 1/2 and
Thomas’ children each take 1/4 ?

Would Alfred’s wife take from the trust if she had
been a child when Alfred adopted her?

Yes—absent an indication of contrary intent by the
testator, adopted children are treated as genetic children
13
What do we learn from
Kentucky statutes on adoption?

“An adult person . . . may be adopted in the same manner
as provided by law for the adoption of a child and with the
same legal effect. . . .”


KRS 405.390
“From and after the date of the judgment the child shall be
deemed the child of petitioners and shall be considered for
purposes of inheritance and succession and for all other
legal considerations, the natural, legitimate child of the
parents adopting it the same as if born of their bodies.”

KRS 199.520
14
What result and why?



Alfred’s wife did not inherit from Amelia’s will (pp.105-106)
Alfred adopted his wife solely as a way to qualify her for the
trust’s corpus. Amelia had not included her children-in-law in her
will, and Alfred was trying to evade that exclusion. According to
the court, including Alfred’s wife would violate Amelia’s intent
Might there be a reason why Amelia did not include Alfred’s wife
in her will that would suggest the wife should take?



By not including the wife, she wouldn’t take if there was a divorce
On the other hand, if they remained married, she would be protected
by Alfred or their children
As we will see, there are ways to provide flexibility in a trust so
future developments can be taken into account (e.g., power of
15
appointment in Martin B.)
What result and why?

Minary is consistent with the UPC, p. 106.


It’s one thing to adopt a child and raise it—one is not
likely to do so to manipulate the interpretation of a will or
trust
If adopted adults were included in class gifts in trusts or
wills (i.e., gifts to my heirs or my descendants), one
could easily manipulate the interpretation of a trust or
will

For example, childless beneficiaries of a trust or will could adopt
their 20 closest friends.
16
Posthumously-born children


If H dies, and W is pregnant, their posthumouslyborn child will be treated as a child for purposes of
trusts and estates law (p. 115)
What if W does not become pregnant with H’s child
until after H’s death (man freezes sperm in
anticipation of infertility and/or death)?
17
What were the facts in
Woodward ?, p.118




Warren Woodward was diagnosed with leukemia.
Advised that treatment for the leukemia might
leave him infertile, Warren froze some of his semen
for later use.
Treatment for the leukemia was unsuccessful, and
Warren died.
Two years later, Warren’s wife, Lauren, gave birth
to twin girls after artificial insemination with
Warren’s semen.
18
Woodward
of Social
Woodwardv.v.Commissioner
Comm’r of Soc.
Sec.,
Security
760 N.E.2d
257 (Mass. 2002)
Lauren
Woodward
Michayla
Woodward
Warren
Woodward
Mackenzie
Woodward
19
Were the twin girls Warren’s
“children” under the MA
rules for intestacy?


The status of the children under the rules for intestacy
did not come up because Warren failed to write a will
Rather, Lauren applied for Social Security survivor
benefits for the children, and Social Security rules look
to state intestacy law to determine whether the twins
were Warren’s children

Not clear why Social Security does not have a federal rule
since policies for intestacy don’t necessarily align with
policies for Social Security benefits

In Astrue v. Capato, 132 S. Ct. 2021 (2012), Supreme Court upheld
Social Security’s reliance on state intestacy law
20
Were the twin girls Warren’s
“children” under the MA
rules for intestacy?

Lauren argued that posthumously-conceived children should
always be treated as the decedent’s children. What’s the
problem with this argument?



It could take many years to figure out who the children are
The decedent may not have wanted his semen used posthumously
Did the MA definition for “issue” include posthumouslyconceived children?


MA defined issue as all direct genetic descendants, marital or nonmarital
Was there any reason to create an exclusion for posthumouslyconceived children?
21
In deciding the status of the
girls, what were the relevant
interests?

Best interests of children (pp.120-121)




The state has consistently acted to protect children and assure their
financial support, regardless of their birth status
The state has not excluded posthumously-conceived children as heirs
under its intestacy rules
The state has done much to promote artificial insemination
On the other hand, what may be best for the children born
posthumously may not be best for children overall—if posthumouslyborn children are given rights of inheritance, the children born during
the testator’s life are given a smaller share, and this can provoke
conflict within families

This takes us to the next state interest—providing certainty to heirs and
creditors by the orderly, prompt and accurate administration of estates
22
In deciding the status of the
girls, what were the relevant
interests?

Orderly administration of estates (p.122)



The usual limitations period is one year. But will that work for
posthumously-conceived children?



The state requires certainty of the decedent’s paternity—not difficult
to establish with posthumously-born children
The state employs a limitations period for the filing of claims against
an estate (for potential heirs and creditors)
Not fair to the surviving spouse to require a decision so soon after the
decedent’s death
Also, it might take several inseminations to generate a pregnancy
What’s the appropriate limitations period?

Court leaves this question for another day (other states require
conception within two-three years, p.125)
23
In deciding the status of the
girls, what were the relevant
interests?

Reproductive interests of the decedent (pp. 122123)


The decedent may not have intended to have
posthumously-born children (perhaps only to use the
sperm while he was still alive)
Treat them as heirs if the decedent consented before
death to


Posthumous reproduction and
Support any children born through posthumous reproduction (not
always required by states that recognize posthumous
reproduction)
24
What does Indiana law say?


Descendants of the intestate, begotten before his death but
born thereafter, shall inherit as if they had been born in the
lifetime of the intestate and had survived him.
With this exception, the descent and distribution of intestate
estates shall be determined by the relationships existing at
the time of the death of the intestate.


Ind. Code § 29-1-2-6
But this statute was adopted in 1953.
25
Do posthumously-conceived
children take from a nonparent’s will?

For an answer to this question, we turn to
the Martin B. case
26
What were the facts in
Martin B.?, p. 126




Martin B. died in 2001, survived by his wife,
Abigail, and a son, Lindsay. Lindsay had two
adult children
Martin’s other child, James, predeceased Martin
by seven months. James was survived by his wife
James’ widow used his frozen sperm to have two
children, born in 2004 and 2006
Martin had left trusts for the benefit of his “issue”
27
In re Martin B.,
In
re
Martin
B.
841 N.Y.S.2d 207 (N.Y. Surr. Ct. 2008)
Abigail B.
Nancy
James
Mitchell
James
Warren
Martin B.
Lindsay
Adult
Child 1
Adult
Child 2
28
What were the relevant
terms of Martin’s trusts?




Martin B. left seven trusts that gave the trustees
authority to sprinkle principal among his issue
while his wife, Abigail, was alive
Martin also gave Abigail a power of appointment
to determine the distribution of the principal upon
her death
If Abigail did not exercise her power of
appointment, the trustees had authority to
sprinkle the principal among Martin’s “issue” and
“descendants”
Should the posthumously-conceived children of
James count as the issue of Martin?
29
Could the two children
inherit from James?

No. Under NY law, posthumously-conceived children
do not share in the intestate estate (p. 127).


Similarly, if James had left a will, the children would not
take as “after-born” children unless he stated otherwise in
his will (p. 127).
What result under the UPC? (p. 125)

You have a 45-month window to give birth to the child.
James died on January 13, 2001, and the first child was
born on October 15, 2004, which is 45 months and 2 days
after James’ death. If Nancy could show that she
conceived by January 13, 2004, then the first child would
count as an heir under the UPC.
30
But we’re dealing with a
third-party’s trust


The rules that govern James as decedent do not
necessarily apply to Martin as donor
Moreover, the trust interests are future interests. We
don’t have the need to wind up a decedent’s estate
in a timely fashion (p. 128)

The relevant statutes for future interests include
posthumously-born children in the definition of issue, but
they did not anticipate posthumously-conceived children
31
Are James’ children eligible
for trust sprinklings?


General trusts and estates principles hold that a child
of assisted reproduction should be treated as any
other child of the decedent if the decedent
considered the child as his or her own (pp. 128-129)
In this view, the two boys are part of Martin’s
bloodline, and Martin intended the trusts to benefit
all the members of his bloodline

The court observed that under the trust instruments,
Martin’s intent was to have the trust “benefit his sons and
their families equally” (page 129)
32
Advancements: hotchpot
Hotchpot Example
Advancements:
example
Testator ($50,000)
Daughter A ($10,000)
1. Testator’s estate
at death:
plus
advancements
Daughter B ($0)
Daughter C ($0)
$50,000.00
3. Daughter A's share
$20,000.00
$10,000.00
minus advancements
$10,000.00
Total hotchpot
$60,000.00
2. Hotchpot divided
by 3 heirs:
$20,000.00
$10,000.00
4. Daughter B's share
$20,000.00
minus advancements
$0.00
$20,000.00
5. Daughter C's share
$20,000.00
minus advancements
$0.00
$20,000.00
33
Presumption against treating lifetime
gifts as advancements—gifts may
reflect a desire to favor the recipient

UPC § 2-109(a) treats gift as an advancement only if



(i) the decedent declared in a contemporaneous writing or the heir
acknowledged in writing that the gift is an advancement or
(ii) the decedent's contemporaneous writing or the heir's written
acknowledgment otherwise indicates that the gift is to be taken into
account in computing the division and distribution of the decedent's
intestate estate
Ind. Code § 29-1-2-10


(1) the decedent declared in a writing or the heir acknowledged in a
writing that the gift is an advancement; or
(2) the decedent's writing or the heir's written acknowledgment
otherwise indicates that the gift is to be taken into account in
computing the division and distribution of the decedent's intestate
34
estate.
Guardianship of minors

Guardianship of the property


Conservatorship


A guardian of property with investment powers similar to those
of trustees, more flexible than guardianship.
Custodianship


Subject to burdensome and costly judicial supervision and
should be avoided.
A person is given property to hold for the benefit of a minor
under the UTMA or UGMA. Useful for modest funds.
Trusts

Flexible and highly customizable property management
arrangement.

Don’t expire when child reaches age 18 or 21
35
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
36
Maryland law

An adopted child shall be treated as a
natural child of his adopted parent or
parents. On adoption, a child no longer shall
be considered a child of either natural
parent, except that upon adoption by the
spouse of a natural parent, the child shall be
considered the child of that natural parent.

Md. Estates and Trusts Code Ann. §1-207(a)
37