Topics for today

Rules for intestacy




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)

Testacy


Intestacy


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



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


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

If Howard dies before Wendy, his survivors are Wendy, two
children through Wendy, and a stepchild through Wendy



UPC 2-102(3) governs—Wendy takes $225,000 plus ½ of the
remainder of the estate, and Howard’s children share the other ½
(with a stepchild in the picture, decedent probably would not want to
leave everything to the spouse)
In Indiana, Wendy takes $25,000 plus ½ of the remainder of the
estate and Howard’s children share the other ½
If Wendy dies before Howard, her survivors are Howard, two
children through Howard and a child with another spouse


UPC 2-102(4) governs—Howard takes $150,000 plus ½ of the
remainder of the estate, with Wendy’s children sharing the other ½
In Indiana, Howard takes $25,000 plus ½ and Wendy’s children share9
the other ½
Problem 1, page 77



If Howard dies before Wendy, Wendy takes $225,000 plus ½
of the remainder of the estate
If Wendy dies before Howard, Howard takes $150,000 plus
½ of the remainder of the estate
Why is Howard’s initial take of $150,000 lower than Wendy’s
initial take of $225,000?


Howard is left with a stepchild while Wendy is left with her children
only
Wendy would be worried whether Howard would look out for all of
her children, while Howard needn’t worry whether Wendy would look
out for all of his children
10
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
11
Problem 2, page 77
Brother
H
W
After one year of marriage, H dies. What is W’s share?
 W takes the entire estate under rules of intestacy, regardless
of how long they’ve been married (under UPC and in IN)
 With the forced share, length of marriage matters, on the theory
that in longer marriages, the couple has had more time to
generate a joint estate
12
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)
13
The simultaneous death
problem


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)?


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
14
What were the facts in
Janus (p.80)?



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Stanley and Theresa Janus died after taking
Tylenol pills that had been laced with cyanide.
Stanley was pronounced dead shortly after
admission to the hospital, while Theresa was not
pronounced dead until two days later.
Stanley had named Theresa the primary
beneficiary on his life insurance policy and his
mother the contingent beneficiary
Should the proceeds of the insurance policy go to
Theresa’s estate or to Stanley’s mother?
15
Janus v.
v. Tarasewicz
Tarasewicz,
Janus
482 N.E.2d 418 (Ill. App. 1985)
Jan
Alojza
Stanley
Theresa
16
Disposition of Stanley’s life
insurance proceeds

If the proceeds went to Theresa’s estate,
who would actually receive them under the
UPC?


Theresa’s parents
Under Indiana’s intestacy statute, Theresa’s
estate would be divided among her parents
and siblings (Ind. Code § 29-1-2-1(d)(3) )
17
Simultaneous death (p.80)

Uniform Simultaneous Death Act (1940, rev. 1953):



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.
18
When did Stanley and
Theresa die?


Everyone agreed that Stanley died the evening of
September 29 shortly after taking the Tylenol.
There was conflicting evidence as to the timing of
Theresa’s death. One expert thought she died on
September 29, but other experts and the trial
court concluded she died on October 1

While she had minimal signs of life, she had more signs
than did Stanley (e.g., no need for a pacemaker to
maintain her heartbeat, right pupil reacted minimally to
light, and some activity on an EEG).
19
Did Theresa really die later
than Stanley?


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


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.
20
Problems, page 86
1.
2.
3.
There are good reasons to think that W survived H in the
boating accident, but not sufficient evidence. W probably
survived longer after falling into the water, but she also
may have fallen in first. With the airplane crash, the
carbon monoxide in the bloodstream demonstrated
survival after impact.
With a 120-hour rule, deaths in Janus and problem 1
would be viewed as simultaneous.
Even 5 days may not be long enough, given the ability of
medical technology to maintain life after a serious injury.
21
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
22
Shares of descendants (1)
(p. 87)
Hall
1/3
1/3
1/6
1/6
23
Competing systems of
representation (p.88)

English Per Stirpes


Modern Per Stirpes


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”)
24
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.
25

Shares of descendants (2)
(p.87)
English per
stirpes
Modern per
stirpes
1/2
1/3
1/3
Per capita at
each generation
(1990 UPC)
1/4
1/3
1/3
1/4
1/3
1/3
26
Shares of descendants (3)
(p.89)
English per
stirpes
Modern per
stirpes
Per capita at
each generation
(1990 UPC)
27
Shares of descendants (4)
(p.90)
English per
stirpes
Modern per
stirpes
Per capita at
each generation
(1990 UPC)
28
Shares of descendants (5)
(p.90)
English per
stirpes
Modern per
stirpes
Per capita at
each generation
(1990 UPC)
29
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
30
Shares of ancestors
and collaterals (p.92)
English
per stirpes
Modern
per stirpes
UPC §2106(c)
31
Table of
consanguinity
(p.93)
32
Problem 1, page 96
33
Problem 2, page 96
34
Problem 3, page 96
35
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
36
majority of those states, A and B would divide equally the sibling share.