Intestacy and children
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
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.”
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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?”)

To whom should the brother’s estate pass?
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?
Can Earl’s children inherit?
4
Did the court correctly
interpret Maryland law?

What textual argument can we make, and Earl’s
children did make, that they were heirs?
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
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“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?
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.
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

UPC 2-119
Which approach—Maryland or UPC—does a better job of
reflecting the likely intent of someone like Earl’s brother?
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
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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?
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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 will prevent the adoption
(p.102)
Note the value of adoption for fending off challenges to the
validity of a will

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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
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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)?
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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)
10
What if the adopted child is an adult?
What were the facts in
Minary, p. 103
11
Minary v. Citizens Fidelity Bank, p.103
Minary v. Citizens Fidelity Bank (1)
419 S.W.2d 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?
Would Alfred’s wife take from the trust if she had
been a child when Alfred adopted her?
13
What do we learn from
Kentucky statutes on adoption?
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“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. . . .”
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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.”
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KRS 199.520
14
What result and why?
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Might there be a reason why Amelia did not include Alfred’s wife
in her will that would suggest the wife should take?
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
appointment in Martin B.)
15
Posthumously-born children
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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)?
16
What were the facts in
Woodward ?, p.118
17
Woodward
v. v.
Commissioner
of Social
Woodward
Comm’r of Soc.
Sec.,
Security
760 N.E.2d
257 (Mass. 2002)
Lauren
Woodward
Michayla
Woodward
Warren
Woodward
Mackenzie
Woodward
18
Were the twin girls Warren’s
“children” under the MA rules
for intestacy?
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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
19
Were the twin girls Warren’s
“children” under the MA rules
for intestacy?
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Lauren argued that posthumously-conceived children should
always be treated as the decedent’s children. What’s the
problem with this argument?
Did the MA definition for “issue” include posthumouslyconceived children?
20
In deciding the status of the
girls, what were the relevant
interests?

Best interests of children (pp.120-121)
21
In deciding the status of the
girls, what were the relevant
interests?

Orderly administration of estates (p.122)
22
In deciding the status of the
girls, what were the relevant
interests?

Reproductive interests of the decedent (pp. 122123)
23
Do posthumously-conceived
children take from a nonparent’s will?
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For an answer to this question, we turn to
the Martin B. case
24
What were the facts in
Martin B.?, p. 126
25
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
26
What were the relevant
terms of Martin’s trusts?
27
Could the two children
inherit from James?
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What result under the UPC?
28
But we’re dealing with a
third-party’s trust


The rules that govern James as decedent do not
necessarily apply to Martin
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)
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The relevant statutes for future interests include
posthumously-born children in the definition of issue, but
they did not anticipate posthumously-conceived children
29
Are James’ children eligible
for trust sprinklings?
30
Advancements: Hotchpot
Advancements:
hotchpot Example
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
31
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
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(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
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(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
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estate.
Guardianship of Minors
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Guardianship of the property
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Conservatorship
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A guardian of property with investment powers similar to those
of trustees, more flexible than guardianship.
Custodianship
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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
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Flexible and highly customizable property management
arrangement.
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Don’t expire when child reaches age 18 or 21
33
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
34
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)
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