Wills -- Intestacy

Intestacy - Marriage Requirement for Surviving Spouse

Marriage requirement—surviving spouse must have been legally married to decedent

• Cohabitation—insufficient to qualify as spouses; but those in civil unions treated like spouses for inheritance purposes

• Separation—spouses are still married until issuance of final decree of dissolution

Survival requirement—surviving spouse (or other heir) must survive decedent to inherit (or take under will) — 120-Hour Rule

• Heir must have survived decedent by 120 hours

• Insufficient evidence of time of death—potential heir failed to survive decedent

• Rule inapplicable if it would result in escheat to state

Survival Requirement - Simultaneous death

• Insufficient evidence persons died other than simultaneously—property of each person disposed of as if each person survived

Survival Requirement - Determination of death

• Irreversible cessation of circulatory and respiratory functions

• Irreversible cessation of all brain functions

Surviving Spouse Intestate Share

Heir—No surviving issue or parents of decedent

Surviving spouse's share: Entire estate

No surviving issue but decedent is survived by parent or parents

First $50,000 + 1/2 of personal estate's Surviving issue, all of whom are issue of balance + life estate in real estate

Surviving issue, all of whom are issue of balance + life estate in real estate surviving spouse

First $50,000 + 1/2 of personal estate's Surviving issue, all of whom are issue of balance + life estate in real estate

Surviving issue unrelated to surviving spouse

1/2 of personal estate's balance + life estate in real estate

Issue

—all lineal descendants, including children, grandchildren, great-grandchildren, but excluding descendants of living lineal descendants

Married parents

• Presumption—child of marriage is natural child of married parties

• Posthumously born children—man presumed to be father of child if parents were married and child born within 300 days after marriage terminated (e.g., by death)

Adoption

• Reference in will to “child” includes adopted child

• Adopted person is child of adopting parent (not child of natural parent)

• Adoption by spouse of natural parent has no effect on relationship between child and natural parent

Equitable adoption (foster parents and stepparents)

No inheritance rights between child and foster parent or stepparent

De facto parent status—established if de facto parent:

• Had support and consent of child’s parents in creating parent-like relationship

• Exercised parental responsibility and

• Acted in parental role for sufficient length of time to create bond or dependency

Half-bloods

—treated same as whole-bloods

Children born out of wedlock

—can always inherit from mother and can inherit through father if:

• Parents marry before child’s birth

• Parents marry after adjudication or acknowledgment of parentage after birth

• Parents (or father if mother is deceased) acknowledge paternity in filed writing

• Parents participated in marriage ceremony even though marriage void

• Paternity established by adjudication

Posthumously-conceived child

—not recognized as child of deceased individual unless individual consented in a record

Calculating share

—per stirpes distribution scheme

• Estate is first divided into total number of children of ancestor who survive or leave surviving issue

• Issue take in equal portions the share that deceased ancestor would take, if living

Ancestors and remote collaterals

1. Part of intestate estate not passing to surviving spouse, or entire intestate estate if no surviving spouse and no surviving issue, passes as follows:

• To decedent’s parent(s) equally

• If no surviving parent, then to brothers or sisters and issue of each deceased brother or sister, per stirpes

• If no surviving issue of parent, then to decedent’s next of kin and issue of deceased next of kin, per stirpes

2. Property to two or more persons passes to them as tenants in common

3. If person passes without any heirs or known kin, estate escheats to State