California Instestate Succession

7/24/2019 California Instestate Succession

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Intestacy Quiz

INTRODUCTION 3

Freedom of Disposition 3 Dead hand control 3 Valid Conditions: 4 Invalid Conditions: 4 Remedy: 5

The Power to Transmit Property at Death The Public Policy Debate: 5 Right vs. Privilege

The !echanics of "uccession # !on"Probate Pro#erty $ Probate Pro#erty $

The Pro$ate Process % Terminology %

CPC &3' Devise %

CPC &34 Devisee %

The Probate Process ( Personal Re#resentatives Duties (

INT&"T'C( )*

Introduction )* )a*oritarian De+ault ,- hy #eo#le die intestate ,- /0#ectancies ,,

"ur+i+in, "pouses "hare )) Community Pro#erty ,, 1e#arate Pro#erty ,, Distribution o+ 1e#arate Pro#erty ,,

-ho .ua/i0es as a sur+i+in, spouse )1 Domestic Partnershi#s in C2 CC &'($ ,' 1e#aration ,'

CPC &3$ ,'

"imu/taneous Death )1 1urvival Reuirement ,' C2 Clear and convincing evidence a##roach ,'

CPC &,-3 1imultaneous Death community or uasi community #ro#erty ,3

CPC &''- ,3

CPC &'', 2##lication o+ cha#ter ,3

CPC &''' 6ene7ciaries right to succeed to interest conditional u#on surviving ,3

CPC &''3 8oint tenants ,3

CPC &''4 li+e9accident insurance ,3

CPC &4-3 ailure to survive by ,'- hours deemed #redeceased ,3

"hares of Descendants )2 Descendants9Issue vs. Children ,4

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Taing /ually" issues o+ eual degree ,4 Determining ;hich issue taes ,4 Cali+ornia Intestate estate not #assing to surviving s#ouse or domestic #artner ,4 Taing


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6ars to "uccession 4 7omicide 3* Aomicide 3-

CPC &'5- 3-

Intentional and +elonious illing 3-

CPC &'54 8udgment o+ conviction as conclusive #re#onderance o+ the evidence 3,

CPC &'5, 8oint tenants 3,

CPC &'5' Insurance bene7ciaries 3,

Introduction8 !acro QuestionThis course i+ +ocused on ;ho gets your #ro#erty ;hen you die. It

is su##osed to go to ;homever you intend it to go toE but that

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o Conditional gi+ts are valid unless they violate #ublic #olicy or *udicial

en+orcement o+ a condition ;ould constitute state action violatingconstitutionally #rotected +undamental rights.

F In+a/id Conditions>o 1ome conditions generally have been held invalid as against #ublic #olicy

Absolute restraints on marriagei+ts conditions on the bene7ciary not

marrying anyone >JB as to 7rst marriages? are generally considered to violate the

+undamental right to marry and are voido &?ception>Partial restraints on marriageim#ose only reasonable

restrictionsare generally not contrary to PP and are valid. hat constitutes aTem#oral9religion reuirementsi+ts reuiring a bene7ciary to

marry ;9I a reasonable time periodE even to someone o+ a #articular Religious6acground have been held valid.

These arguable don@t restrict an individual@s right to marry they only

encourage him to marry ;9I a certain time +rame and ;9I a #articularreligion

Shapira v. Union National Bank [P.!Facts athers testamentary gi+t to sons reuired each to be married ;9I $

years o+ +ather@s death to


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Religion Re"uirementi+ts that reuire a bene7ciary to remain +aith+ul to a

#articular religion generally are held to violate PP concerning religious +reedom andare invalid

#n$ouraging separation%divor$egi+ts reuiring 6 to divorce9se#arate be+ore

receiving the gi+t are deemed against PP and void b9c they encourage divorce.o 6ut gi+ts that #rovide +or a 6 only in the event o+ a se#aration are not

necessarily deemed to encourage divorce.o hat controls here is the decedentAs dominant intentto encourage the

se#aration or merely #rovide su##ort in the even o+ se#aration.

Promoting family strifegi+ts conditioned on +amily members ostraciOing9 or

not communicating ;9 other +amily members are generally against PP and void

Property destru$tion dire$tivePeo#le are +ree to destroy their #ro#erty ;hile

they are alive" but they are not +ree to destroy #ro# u#on their death.o Inter vivos destruction o+ #ro#erty carries an economic cost that deters o;ners

o Destruction at death doesn@t have any meaning+ul economic cost +or the

decedent and de#rives society o+ the o##ortunity to determine the best use o+the #ro#erty

F Remedy>o ;here a conditional gi+t violate PPE the critical variable is ;hether there is a


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F The Pu$/ic Po/icy De$ate>

Pro2 #erson should have the #o;er to trans+er #ro# at death b9c such a #olicy is

consistent ;ith #rivate #ro#erty.o /ncourages and re;ards a li+e o+ hard ;or

o Promotes +amily ties

o /ncourages individuals to accumulate ;ealth +or old age and to give to +amily

o /ncourages +amily members to loveE serveE and #rotect their elders

'on1houldn@t have the #o;er to trans+er J death b9c such a #olicy #er#etuates

economic dis#arity and discrimination and constitutes an unearned ;ind+all tothose ;ho ha##en to have ;ealthy relativeso 1uch unearned ;ealth creates #o;ers and #rivileges that are undeserved and

denies eual o##ortunity to all children

Rebuttalinter vivos investments in healthE educationE cultureE

and connections? arguably account +or more dis#arity in o##ortunities and ;ealththan inherited ;ealth.

(ogi$al options3 viable o#tions +or ho; society can handle the succession o+ a

decedent@s #ro#erty:o Prevailing +reedom o+ dis#ositioni+ the decedent e0#resses his intent andE i+

notE according to a state@s intestate scheme >;hich is the arguable #resumedintent o+ the average #erson?

o orced 1uccession ;here +amily members ;ould be entitled to decedent@s

#ro#erty >or i+ no +am then escheat to the state?o 1tate con7scation ;here a decedent@s #ro#erty rights ;ould terminate u#on

death and the state ;ould o;n the #ro#erty by o#eration o+ la;

Permit but ta)historically the Q1 has tried to balance these com#eting PP

arguments by #ermitting ;ealth to be trans+erred u#on death but im#osing an

estate and gi+t ta0 at signi7cantly higher rates than those a##lied to earnedincome

Phased*in elimination of estate ta)2nti"estate ta0 #ro#onents hold the

u##er hand currently" this is reHected by the most recent amendments to the +edestate and gi+t ta0 la;s that increase the basic +ed estate ta0 e0clusion amount +orestates o+ #eo#le ;ho die in '-,3 to 5E'5-E---. or estate above that amountE theestate ta0 rate starts at 4-

F Ri,ht +s; Pri+i/e,e

&overnmental power to regulate#resumed that the #o;er to #ass one@s #ro#

at death ;as not a constitutionally #rotected right

The !echanics of "uccession

Pro$ate: " TestateValid ill " Intestate!o ill

ho taesDecedents #ro# J

death +,-#P#N-S

Non4 Pro$ate: " 8oint Tenancy" Bi+e Insurance9 PKD S" Bi+e

/states9Raminders

" Inter vivos trust


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8 !acro Issueho gets the decedent@s #ro#erty ;hen he dieso The ans;er turns on ;hat ty#e o+ #ro#erty is involved: non"#robate or #robate

8 Pro$ate +s; Non4Pro$ate property2 ;ill only dis#oses o+ a decedent@s #robate

#ro#erty. Probate is the de+ault" but there are a number o+ ;ays to dis#ose o+ #ro# ;9o#assing through #robate >these are non"#robate?

F Non4Pro$ate Propertyo Aistorically only 4 ty#es o+ #ro# have uali7ed as non"#robate

oint ,enan$y8T@s hold #ro# concurrently. They o;n it in ;hole and in +ractional

shares.o The ey to 8T is the right to survivorshi#" ;herein u#on the death o+ one 8TE his

+actional share is e0tinguishedE and the shares o+ the surviving 8Ts arerecalculated.

o Technically no #ro#erty interest #asses u#on the death o+ a 8T

(ife +nsuran$e2n agreement bet;een the insured and insurance com#any

thatE u#on the insured@s deathE bene7ts ;ill be #aid to the bene7ciaries selected bythe insured. BI #roceeds aren@t #robate #ro#erty and are distributed directly to the6@s ;9o being sub*ect to the #robate #rocess.o JCB BI S@s ;ere the only ty#e o+ S ;ith a Payment"Kn"Death >PKD? clause that

uali7ed as a valid ;ill substituteo )odern trend" PKD S@sa li+e insurance #olicy is a S ;ith a PKD clause.

)odern trend recogniOes all S@s ;ith PKD clauses as validE non"#robatetrans+ers e0em#t +rom the #robate #rocess

(egal life estates / remainders;hen a li+e estate holder diesE although the

right to #ossession #asses to the #erson holding the remainderE that trans+er is theresult o+ the grantor@s division o+ #ro#erty bet;een the li+e estate and remainderEnot the result o+ the deceased li+e tenant #assing a #ro# interest. This ty#e o+#ro#erty avoids #robateo ,ransfer on -eath -eed>modern trend? #ermits a trans+eror to create a

revocable deed that doesn@t #ass any interest until the #arty dies. Aisarrangement #ermits a decedent to trans+er his or her interest in real #ro#ertyu#on death ;9o the trans+er being sub*ect to the #robate #rocess.

+nter vivos trust2 trust is an arti7cial legal entity that holds and manages the

#ro#erty #laced in the trust. There are several diG ty#es o+ trusts: inter vivos

trustsE testamentary trustsE and Qni+orm Testamentary 2dditions to Trusts 2ct>QT2T2? trusts.o K+ the 3E only #ro#erty trans+erred to an inter vivos trustduring the li+e od

the #arty avoids #assing through #robate

F Non4Pro$ate property taBersnon"#robate #ro# goes to the trans+erees identi7edin the ;ritten instrument #ro#erly creating the non"#robate #ro#erty arrangement.Doesn@t #ass through #robate

F Pro$ate Property

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o i+ #ro# in uestion is not non"#robate it goes to the de+ault #robate #ro#erty

system.

0ill 1s. +ntesta$y;ho taes #robate #ro#erty de#ends on ;hether decedent

had a valid ;ill.o 2 #ro#erly e0ecuted ;ill constitutes an e0#ression o+ a #ersons intent as to ;ho

should tae his #ro#erty at deatho I+ decedent doesn@t have a ;ill or i+ the ;ill doesn@t dis#ose o+ all the

decedent@s #ro#E the #ro#erty #asses via intestacy to the decedent@s heirso I+ decedent taes no ste#s to o#t out o+ intestacy all his #ro# #asses through

intestacyintesta$y is the defaulto Optin, out of intestacycan o#t out o+ intestacy by e0ecuting a ;ill or a

;ill substitute >recogniOed non"#robate methods o+ trans+erring #ro#erty? i+#ro#erly e0ecuted a ;ill substitute then #ro# avoids #robate 6UTi+ one o#tsout o+ intestacy by a ;illE the #ro#erty still #asses through #robate

The Pro$ate Process

F Pro$ate Defau/t!on"Probate #asses #ursuant to the instrument ;9o #assing

through #robate. Probate #ro# #asses through the #robate systemF Pro$ate 'dministrationProbate is very com#le0" and varies state to stateF Termino/o,y

,estateDecedent ;ho dies ;9 a ;ill

+ntestateDies ;9o a ;ill" #ro# distributed according to state statute on descent

and distributiono I+ a decedent dies ;9 a ;ill that dis#oses o+ some but not all his #ro#" then he

dies both testate and intestate

,estator)ale ;ho e0ecutes a valid ;ill

,estatri)emale ;ho e0ecutes a valid ;ill

-evisei+t o+ real #ro#erty under a ;ill >deviseE devises?

o Today used +or testamentary gi+ts o+ either real or #ersonal #ro#erty

F CPC 31 De+iseLaMUDeviseEU ;hen used as a nounE means a dis#osition o+ real or #ersonal #ro#erty

by ;illE andE ;hen used as a verbE means to dis#ose o+ real or #ersonal #ro#ertyby ;ill.

-evisee6ene7ciary receiving real #ro#erty under a ;ill

F CPC 32 De+isee

LaMUDeviseeU means any #erson designated in a ;ill to receive a devise.LbMIn the case o+ a devise to an e0isting trust or trusteeE or to a trustee on trustdescribed by ;illE the trust or trustee is the devisee and the bene7ciaries arenot devisees.

Be"uesti+t o+ #ersonal #ro# under a ;ill >beueathE beueaths?

(ega$yi+t o+ money >modern trend: o+ any #ersonal #ro#erty? under a ;ill

(egatee6ene7ciary receiving money >modern trend: any #ersonal #ro#erty?

under a ;ill

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Personal RepresentativePerson a##ointed by #robate court to oversee

administrative #rocess o+ ;ra##ing u# and #robating the decedent@s aNars

#)e$utorhat the #ersonal re# is called i+ the decedent ties testate and the ;ill

names the #ersonal re#

Administratorhat #ersonal re# is called i+ decedent dies intestate or testate

but the ;ill +ails to name a #ersonal re#resentative

Probate 'ourtThe state court ;9 s#ecial 8D over determining ;ho is entitled toreceive the decedent@s #robate #ro#erty

Statute of -es$ent and -istributionI+ a decedent dies intestate as to some

or all o+ his #ro#" the #ro# ;ill be distributed to those individuals identi7ed toreceive such #ro#erty under the state@s statute o+ descent and distribution

2eirs2t CB i+ a decedent dies intestateE the decedent@s real #ro#erty ;as said to

descend to the decedent@s heirs

Ne)t of 3in2t CB i+ a decedent died intestateE the decedent@s #ersonal #ro#erty

;as distributed to the decedent@s ne0t o+ in

F The Pro$ate Process

+mportant b%$:

o Provides orderly trans+er o+ title +or decedent@s #ro#

o /nsures creditors receive noticeE and o##ortunity to #resent their claimsE and

#aymento /0tinguishes claims o+ creditors ;ho do not #resent their claims to #robate

courto /nsures that the decedent@s #ro#erty is #ro#erly distributed to those entitled to

receive it

456 7pening ProbateProbate ct in county ;here decedent ;as domiciled J

time o+ death has #rimary9domiciliary 8D over the decedent@s #robate estate. Cthas 8D over #ersonal #ro# real #ro# located ;9I that 8Do Presenting death certi7cate o#ens #robate

o De#ending on ct" ct issues letters testamentary a##ointing an e0ecutor or

letters o+ administration a##ointing and administratoro )a*ority o+ 8Ds reuire notice to interested #arties be+ore selection and

a##ointment o+ e0ecutor or administratoro An$illary -may be necessary i+ decedent o;ned real #ro# located in a diG

8D +rom domicile. /nsures that local creditors in the 8D ;here the real #ro# is located receives

notice and o##ortunity to #resent their claims That there is com#liance ;ith that 8Ds recording system

486 0ill 'ontestsI+ a #ty ;ishes to 7le a claim challenging the validity o+ a ;ill

oGered +or #robateE most 8Ds have a statute reuiring that the contest be broughtin a timely manner a+ter #robate is o#ened or the claim is barred

496 Probate administrationKnce ct issues its letterE the #ersonal re# is

authoriOed to begin his res#onsibilities

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F Persona/ representati+es powers1ome 8Ds reuire #robate ct su#ervision andauthoriOation at almost every ste#E thereby incurring greater e0#ense +or the estate

o Kther states #ermit unsu#ervised admin under most circumstancesE ;ith one

7nal accounting being 7led ;9 the #robate ct at the end.

F Persona/ Representati+es Duties

+nventory -e$edent:s assetsascertain and tae control o+ decedent@s #robate

#ro#E ;hich is then inventoried +or the #robate court

&ive noti$e / pay $reditorsgives notice >usually by #ublicationE but no;n

creditors may be entitled to actual notice? o+ the o#ening o+ #robate.o Decedents creditors are reuired to 7le any and all claims ;9I a set statutory

#eriod or their claims ;ill be barred +orevero Personal re# must #ay those creditors ;ho #resent valid claims ;9I the

#rescribed time #eriodo Personal re# must also 7le state and +ederal estate ta0 returnsE and i+

necessaryE #ay any ta0es due

-istribute de$edent:s probate property;hatever is le+t a+ter #aying

creditor@s claims is the distributed to those entitled to receive under the ;ill orunder the state@s intestacy statutes

8 Costs de/ays of pro$ate

Probating an estate is e0#ensive and ties u# decedent@s #robate assets during the

#rocess

Costly b9c o+ #robate court +eesE and other miscellaneous +ees

/ven #robate o+ a sim#leE uncontested estate taes any;here +rom ,"' years

8 Pro$ate Tit/es property

Probate is necessary to trans+er title to real and #ersonal assets that ;ere titled in

decedent@s name. here asset has a ;ritten +orm o+ title in decedent@s nameE a#robate ct order is necessary to trans+er title #ro#erly

Intestacy

Introduction

8 Intestacy is the NormDes#ite bene7ts o+ non"#robate ;ills about the#o#ulation dies intestate.

o 2ny #ro# not dis#osed o+ by non"#robate +alls to #robateE and any #robate notdis#osed o+ by ;ill +alls to intestacy ;here it is distributed to decedent@s heirs

o Partial intesta$y2 decedent can die both testate and intestate i+ ;illdoesn@t dis#ose o+ all #ro#erty

F !aEoritarian Defau/to intestate scheme is based on the decedent@s #resumed intentE but intestate

scheme cant reHect the #resumed intent o+ every #ossible decedent.

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o Too many varied relationshi#s todays society. 1o intestate schemes are based

on a ma*oritarian de+ault a##roach that guesstimates the #robable intent o+ theaverage individual in that situation.

F -hy peop/e die intestate

Psy$hologi$allyestate #lanning +orces #eo#le to acce#t their o;n mortalityE

and many #re+er not to thin about the +act that they ;ill one day die

;inan$iallydra+ting and e0ecuting a ;ill can be time consuming and e0#ensive.

)ost non"#robate ;ill substitutes are chea#er and easier to create than thetraditional ;ill.

8 Intestate "tatuteshere decedent dies intestateE distribution o+ his #ro# isgoverned by the state@s statute o+ decent and distribution

8 Tiered 'pproachthe categories o+ #ossible taers are listed in order. 2ny #ro#ertynot #assing to the surviving s#ouse #asses to the ne0t tier that there is a live taer.Knce that tier is determinedE all the #ro#erty that the surviving s#ouse did not tae isdistributed to that tier. !o #ro#erty +alls to a lo;er tier. >this is ;here there is nocommunity #ro#erty la;?

8 7eirs +s; 7eirs apparent

to uali+y as an heir >an intestate taer? the heir mustsurvive the decedent. 1o a #erson ;ho is alive only has heirs a##arent not heirs >yet?

F &?pectancieso most children e0#ect to receive some #ro# +rom #arents ;hen they die. This

e0#ectancy is not a #ro#erty interest. The heirs a##arent needs to survive thedecedent to tae anythingE and even i+ the heir a##arent survives the decedent"the decedent can de+eat the e0#ectancy by trans+erring inter vivos or devising a;ill.

o ,ransferabilityb9c e0#ectancy isn@t a #ro#erty interestE it cant be

trans+erred. 6QT an heir a##arent can agree to trans+er his e0#ectancy +orvaluable consideration" and later i+ he tries to avoid en+orcement o+ the

agreement on the grounds that an e0#ectancy isn@t trans+errableE a court ;illen+orce the agreement i+ it is +air and euitable under the circumstances.

"ur+i+in, "pouses "hare

F Community Property

2sset acuired or income earned by a married #erson ;hile ;ith that s#ouse.

o L,M 1urviving 1#ouse gets )** of [email protected] community property>his9her hal+ W hal+ o+ decedent?

o 6QT Decedent can devise his hal+ as he ;ishes" but i+ it is intestate then it goes

to s#ouseF "eparate Property

anything acuired by a s#ouse be+ore the marriageE during the marriage by gi+tE

deviseE or beuestE and a+ter the #arties se#arateo 2ssets brought into the marriage >be+ore marriage?

o Inheritance o+ decedent

o i+ts to decedent

'hildren%'hildalive or dead but survived by issue

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2ll ,-- $ommunity Property goes to survivings#ouse

F Distri$ution of "eparate Property1X 1urviving 1#ouse

Decedent has NOsurvivingIssueE ParentE brotherE 1ister

or Issue o+ 1ibling

,-- to 1

Decedent has only ,surviving Child KR Issue o+

deceased child

>5-? o+ 1e#arate#ro# to 1

Decedent has noissue 6UThas ParentE ParentsE Parent@sIssueE Issue o+ either Parent

o+ 1e#arate #ro# to1

Decedent has more than ,child

,93 >33.33? to 1

Decedent leaves , child'NDissue o+ , or more

deceased children

,93 to 1

Decedent leaves issue o+ 'Wdeceased children

,93 to 1

-ho .ua/i0es as a sur+i+in, spouse

F Domestic Partnerships in C' CFC 1G

' adults" chosen to share in intimate and committed relationshi#

6KTA #ersons must 7le a Declaration o+ Domestic Partnershi# ;9 1ecretary o+ 1tate

J the time o+ 7ling 2BB o+ the +ollo;ing must be met:o 6oth live at a common residence

Doesn@t mean that the legal right to #ossess the common residence is in

both o+ their names ' #eo#le have a common residence even i+ one or both have an additional

residence 1till common residence i+ one leaves but intends to return

o !either is married9in domestic #artnershi# ;ith another >that hasn@t been

dissolved?o ' #ersons not related by blood in any ;ay that ;ould #revent them +rom being

married in C2o 6oth are at least ,% yrs

o #ithero+ the +ollo;ing: )embers o+ the same se0

I+ #ersons o+ o##osite se0, or both above age '

o 6oth are ca#able o+ consenting to domestic #artnershi#

F "eparation

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1#ouses ;ho are legally se#arated still uali+y as s#ouses +or #ur#oses o+ intestate

distribution. /ven i+ they 7led +or divorceE they are still married until the courtenters the 7nal *udgment or decree o+ dissolution

F CPC 3Go bMI+ domestic #artnershi# ;as terminated be+ore death o+ one s#ouse but

!otice o+ Termination ;asn@t 7led by either #arty #rior to the death" then thedomestic #artner ;ho survives is treated as a surviving s#ouse9domestic

#artner entitled to the same rights"imu/taneous Death

F "ur+i+a/ Re.uirement

To receive #ro#erty +rom a decedent the taer must survive. Ao; longE and the

burden o+ #roo+ varies +rom state to state. I+ the claimant +ails to meet the survivalreuirementE the claimant is treated as i+ he or she #redeceased decedent

F C' C/ear and con+incin, e+idence approach

' ste# #rocess:

o ,M did the claimant actually survive the decedent

o 'M did the claimant legally survive the decedento /ven I+ the claimant actually survives but doesn@t legally survive decedentE

then the claimant is treated as i+ he #redeceased the decedent

2##ly se#arately to each decedent

o 2nalysis o+ 7rst s#ouse

o 2nalysis o+ second s#ouse

F CPC )*3 "imu/taneous DeathH community or .uasi community property

#)$ept as provided in ill bene7ciaries must survive last surviving s#ouse by ,'- hours?E or &4-3>+ailure to survive by ,'- hours? a##lies

Cha#ter doesn@t a##ly in case o+ trustE deedE S o+ insurance or other situation

;hereo Provisions made e0#licitly dealing ;9 simultaneous death or #roviding +or

distribution diGerent +rom these #rovisionso Provision is made reuiring survival +or a stated #eriod to tae or #roviding

+or a #resum#tion as to survivorshi# that results in a diG distribution thenthis cha#ter

F CPC 111 6ene0ciariesH ri,ht to succeed to interest conditiona/ uponsur+i+in,

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I+ #ro#erty dis#osition is conditional u#on surviving another person cant beestablished by CC/E the bene7ciary is deemed not to have survived the other#erson

I+ #ro# is dis#osed o+ so that one o+ ' or more bene7ciaries ;ould have been

entitled to #ro# i+ he survived the others cant be establishedE then #ro# shall bedivided into as many eual #ortions as there are bene7ciaries and that #ortionshall be distributed as i+ bene7ciary survived the others

F CPC 113 oint tenants

Cant be established by CC/" then create a TIC and s#lit evenly as i+ a 8T survived

the other >a##lies ;9 ' #eo#le and multi#le?F CPC 112 /ife@accident insurance

Insured bene7ciary died and cant be established that bene7ciary survived

insured" then administered as i+ insured survived bene7ciary

#>'#P,i+ #olicy is community #ro#erty o+ insured s#ouse o+ insured and thereis no other alternative bene7ciary e0ce#t state or #ersonal re# o+ insuredin thatcase #roceeds distributed as community #ro#erty under &,-3

F CPC #2*3 Fai/ure to sur+i+e $y )1* hoursH deemed predeceased

In C2 the time is ,'- hours i.e. 5 days. 2nd in such a case i+ not survive by 5 daysE

then that #erson is deemed to have #redeceased decedent +or #ur#oses o+intestate succession

I+ it cant be established by clear and convincing evidence that they survived +or 5days then it is deemed that the #erson +ailed to survive +or the reuired #eriod

2##lication o+ ,'- hour rule doesn@t a##ly i+ it means that the #ro#erty ;ould

escheat to the state

"hares of Descendants

2+ter the s#ouses share is set asideE children and descendants o+ deceasedchildren tae the remainder o+ the decedent@s #ro#erty to the e0clusion o+

everyone elseF Descendants@Issue +s; Chi/dren

Descendant9Issue is much broader than the term children

-es$endant:s%issue are all o+ one@s oGs#ring one@s childrenE their children>grandchildren?E great"grand children and so on

Kne@s $hildrenare one@s immediate oGs#ringE that isE only the 7rst generation o+one@s issue

F TaBin, &.ua//y4 issues of e.ua/ de,ree here all o+ the decedent@s children survive the decedentE it is easy to divide

eually

/Y: Decedent dies survived by 3 children 2E 6E and C,93 each among the 3children

F Determinin, which issue taBes +ssue of prede$eased $hild takes in his pla$ei+ Decedent had a child ;ho

#redeceased himE but is survived by issueE his issue ;ill share in the distribution.o This issue taes by representation" he ste#s u# and re#resent the

#redeceased relative

+f a person takes his or her issue does not

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Absent adoption? only blood relatives "ualify as heirs1o i+ 6 >son? diesbe+ore 2 >+ather?E and 6 is survived only by his ;i+e C and C@s children +rom a #riormarriage" neither C nor her children are entitled to share in the distribution o+ 2@sintestate #ro#erty >e?cept if that is a /ast resort as seen in #2*1JeKsibling9ste# sibling9 hal+ sibling?issuetaing i+ all same degree o+ inshi# todecedentI+ uneual degree those o+ more remotedegree tae in manner in &'4- ;9re#.

3. !o surviving issueE #arentE or issue o+#arentE but decedent is survived by , ormore grand#arents or issue o+grand#arents

To the grand#arentLsM eually ORto theissue o+ those grand#arents i+ there is nosurviving grand#arent the issue taingeually i+ all same degreei+ uneual

degree those more remote tae #er &'4-

4. !o surviving issueE #arent or issue o+ a#arentE grand#arent or issue o+ agrand#arentE but issue survived by theissue o+ #redeceased s#ouse

To issue o+ #redeceased s#ouseE issuestaing eually i+ all o+ same degreeE i+uneual degree #er &'4-

5.a. !o surviving issueE #arent or issueo+ #arentE grand#arent or issue o+grand#arentE or issue o+ #redeceaseds#ouseE but survived by ne0t o+ in

To the ne0t o+ in in eual degree

5.b. ' or more collateral indred in eualdegree ;ho claim through diGerent

ancestors

Those ;ho claim through the nearestancestor are #re+erred to those claiming

through an ancestor more remote. no surviving ne0t o+ inE no survivingissue o+ #redeceased s#ouseE butdecedent survived by #arents o+#redeceased s#ouse or the issue o+ those#arents

To the #arent or #arents euallyE or to theissue o+ those #arents i+ both aredeceasedE the issues taing eually i+ theyare all o+ the same degree o+ inshi# to the#redeceased s#ouse

I+ o+ uneual degree those o+ more remotedegree tae #er &'4-

$. !one o+ the above /scheats to the state

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F TaBin, Le.ua//yM where issues are of une.ua/ de,ree

Decedent dies intestateE and has no surviving s#ouse

The #roblem ;e are +aced ;ith:

o At whi$h generation should the de$edent:s property be divided @rst

o At whi$hever generation the estate is divided @rst? how manyshares should the estate be divided into ans;er is al;ays thesameX one share +or each descendant ;ho is alive at that generationE andone share +or each descendant at that generation ;ho is dead but survivedby issue

o 2ow are the dropping shares distributed

-ropping sharesare the shares +or the descendants ;ho are dead

but survived by issue 1hould these dro##ing shares dro# by bloodline to the issue o+ that

#arty Kr should they be #ooled and distributed eually among theeligible taers at the ne0t generation

o These distribution schemes >#er ca#itaE #er stir#esE and #er ca#ita at each

generation? also a##ly in situations ;here a decedent@s #ro#erty isdistributed to the issue o+ $ollateralrelatives

F Per "tirpesF CPC 12#

2l;ays mae the 7rst division o+ decedent@s #ro#erty at the 7rst generation o+

descendantsE ;hether there are any live taers or not the dro##ing shares then

dro# by bloodline

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ho taes Decedents #ro#erty assuming no surviving s#ouse

o "tep )divide at 7rst generation >2"6"C?E even i+ everyone in that

generation is deado "tep 1one share given to each #arty ;ho is aliveE and one share to each

#arty ;ho is dead but survived by issue 2E 6E and C each receive ,93

o "tep 3the shares o+ each dead issue survived by issue dro#s by bloodline.

/ach share dro#s only to the issue o+ the #redeceased #arty. '+or 2@s ,93 dro# to the ne0t generation and divide that share +or

each #arty alive at that level and one share +or each #arty ;ho is deadbut survived by issue. ,9 goes to / and ,9 goes to

&/@s ,9 divided eually to SE BE and ) >,9% each?

66@s ,93 dro#s by bloodline to . 69c is alive and taesE ! taesnothing

CC@s ,93 dro#s by bloodline. Divide C@s ,93 giving one share +or each

#arty ;ho is aliveE and each #arty ;ho is dead but survived by issue

7does not tae b9c #redeceased C and not survived by issue

I is alive so I gets his share

is dead but survived by K and P" so C@s ,93 is s#lit ,9 to I and,9 to 8.

o As,9 dro#s giving ,9,' to each o+ K and P

F Per capita with representation :C' defau/t approachshares +ordescendants ;ho are dead but survived by issue?. This means that thedro##ing shares are added together and then divided eually among all theeligible taers at the ne0t generation

2l;ays mae the 7rst division o+ decedents #ro#erty at the 7rst generation ;here

there is a live taerE and the dro##ing shares dro# by #ooling combine them anddistribute them eually among the eligible taers at the ne0t generation

"tep )al;ays divide at the 7rst generation ;here there is a live taerE so /@sgeneration

"tep 1Kne share given to each #arty ;ho is alive and to each #arty ;ho is deadbut survived by issue

o F and I X 3

o & X'

o )@ each >none +or A?

"tep 3#ool the dro##ing shares.

o F and I each get ,95

,%


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o & and each have ,95 le+tthose are #ooled so ,95W,95X'95

Divide that total eually among the eligible taers at the ne0t

generation ! O P are all eligible >5? so divide the remaining '95 by 5X '9'5

each

F "ummary

Per stir#es Per ca#ita ;9 re# Per ca#ita J eachgen

here todivide

irst gen irst gen live taer irst gen live taer

Ao; manyshares isestate dividedinto J thatgen

, share +or each live#arty one shareeach dead #artythat is survived byissue

, share each live #arty ,share each dead #artysurvived by issue

Kne share each live#arty one shareeach dead #arty bursurvived by issue

Dro##ing share Dro# by bloodline Dro# by bloodline Dro# by #ooling

F Power to opt out /ach 8D has a de+ault a##roach as to ho; to distribute among issues. The de+ault

al;ays a##lies to intestate distribution. 2n individual can o#t out o+ a 8Ds de+aulta##roach by e0ecuting a valid ;ill or non#robate instrument that e0#ressly#rovides +or an alternative method o+ distribution

F -here instrument doesnAt specifyF CPC 12

illE trustE or other instrument calls to be taen in manner #rovided in &'4- or ;illE

trustE instrument that e0#resses no contrary intention #rovides +or issue or

descendants to tae ;9o s#eci+ying the manner" then it should be distributed #erca#ita ;9re#resentation

The +ollo;ing ;ords ;9o more as a##lied to issue or descendants is !KT an

e0#ression o+ contrary intention >so a##ly de+ault &'4-?o Per ca#ita;hen living members o+ designated class aren@t +rom same gen

o Contradictory ;ording lie


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;irst line $ollateralsdecedent@s #arents >)Xmother Xather? and their otherissue b9c their line is the 7rst line removed +rom decedent@s immediate +amily

Se$ond line $ollateralsdecedent@s grand#arents >)XrandmotherXrand+ather? and their other issue >other than decedent@s #arents?

,hird line $ollateralsreat grand#arents >)Xgreat grandmotherXreat grand+ather? and their other issues >other than decedent@s

grand#arents? and so on.

F Parente/ic 'pproach 1tarts ;9 decedent@s immediate +amily and them moves out along collateral linesE

starting ;9 closer lines and moving to the more remote. This a##roach ee#s goingout by collateral lines until there is a line in ;hich there is a live taer. The #ro#ertyis then distributed to the decedent@s relatives in that #arentelic line.

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o -istribute the property a$$ording to per stirpes? per $apita? or per$apita at ea$h generationde#ending on state de+ault >#er ca#ita in C2?

,M 1tart by going out by #arentelic lines until you 7nd the 7rst collateral line ;ith a

live taer.

'M the #ro#erty is then distributed to the taers in that line

!o live taes in #arent@s line >)E ? >7rst line collaterals?

!o live taers in P@s line >second line collaterals?

There are live taers in the P line >third line collaterals? 6ECE and D Knce a collateral line ;9 a live taer is +oundE the #ro#erty is distributed in

that linein C2 6ECE and D ;ould tae ;9 re#resentation de#ending ondegree o+ relationshi# >ake the @rst division below the $ommonan$estor tier?

F De,ree of re/ationship ocuses on degree o+ relationshi# bet;een decedent and claiming relativeE

regardless o+ ;hich #arentelic line the taer is in

Qnder this a##roach one sim#ly counts the degrees o+ relationshi# bet;een the

decedent and the relativeE and those relatives o+ the closest degree >lo;er degree?

tae to the e0clusion o+ those o+ a more remote >higher? degree. 1ome 8Ds start ;9 #arentelic a##roach but at some #oint >either a+ter 7rst or

second collateral line? s;itch to the degree o+ relationshi# a##roach

-etermining degree of relationshipcount +rom the decedent u# to theclosest common ancestor >the head o+ the #arentelic line a grand#arent or greatgrand#arent and so on?E and then do;n to the live relative

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Decedent dies is only survived by 2E6ECE and D

To calculate degree o+ relationshi# bet;een 2E 6E CE and D to decedent

identi+y the closest common ancestor both #arties share. Count ste#s u#+rom decedentE to that common ancestor and then do;n +rom the commonancestor to the #arty in uestion

;or Aclosest +or decedent and 2 are the Ps

o Count u# to closest common ancestorX4 >)E PE PE P?

o Count do;n +rom the closest common ancestor to 2X, >P to 2?

o Decedent is related to 2 by the 5th degree.

;or B / 'CC2 is PX3 >)E PE P? then do;n X' >PE 6? so 6 C arerelated to decedent by the 5th degree

;or -u#X >E PE P? Do;nX 3 >QE CE D? so related by the si0th

degree

Qnder the degree o+ relationshi# a##roachE those relatives o+ a closer degree tae

to the e0clusion o+ those o+ a more remote degreeo 2E 6E and C are o+ the 5th degreeE and D is the th degree

o 1K 2E 6E and C tae to the e0clusion o+ D. 2E 6E and C s#lit the estate eually.

F De,ree of re/ationship w@ a parente/ic tie$reaBer :C' 'pproach< Step 5determine the degree o+ relationshi# o+ the #ossible taers. Those o+ a

closer degree tae to the e0clusion o+ those o+ a higherE more remote degree.

Step 8i+ there are multi#le taers sharing the lo;est degree o+ relationshi#Ethose in the closer #arentelic9collateral lines tae to the e0clusion o+ those in themore remote #arentelic9collateral lines

F "tepchi/dren

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&4-'LeM In C2 they tae i+ no surviving issueE #arent or issue o+ a #arentEgrand#arent or issue o+ a grand#arentE but the decedent is survived by the issue o+a #redeceased s#ouse

F 7a/f4$/oods Relatives ;ho share only one common #arent as o##osed to traditionally sharing

both #arentsF CPC #2*#

Aal+"bloods inherit the same as ;hole bloodsF au,hin, 7eirs

intestate succession by distant relatives ;ho are so +ar removed +rom the decedent

that they liely didn@t no; him and suGered no sense o+ bereavement u#onlearning o+ his deatha bit more than states have abolished this dra;ing theline J grand#arents and their descendants i.e. no tracing inheritance throughgreat"grand#arents

C2 cuts it oG at grand#arents and thus does not #ermit laughing heirs

F Disinheritance $y ne,ati+e wi// 2ssuming one does not ;ant a #articular heir to tae any o+ his or her intestate

#ro#ertyE ;hat must one do to disinherit that #articular heir Qnder the modern trend9 QPC a##roachE a decedent can disinherit an heir by

#ro#erly e0ecuting a ;ill that e0#resses such an intentE even i+ some or all o+ thedecedent@s #ro#erty #asses through intestacy and the heir other;ise ;ould haveuali7ed to tae some o+ the #ro#erty. The heir is treated as i+ he or she#redeceased the decedent. LI+ the heir is survived by issueE they tae byre#resentation unless the ;ill e0#ressly disinherits them as ;ell.M

'dopted Chi/dren

F Qua/ifyin, as a descendant@issue

To uali+yE a #arty must establish a legally recogniOed #arent"child relationshi#F &sta$/ishin, a Parent@chi/d re/ationship

F CPC #2*

The starting #oint is establishing the relationshi# iby a##lying the

standard9traditional biological test. The ;oman ;ho contributes the egg and givesbirth to the child is the child@s natural mother. The man ;ho contributes the s#ermis the natural +ather.

Parents marriedi+ a child is born and natural #arents are marriedE a #arent"child relationshi# e0ists9arises +or inheritance #ur#oses

o +nheriting from and through#arent"child relationshi# establishes

inheritance rights in both directions. 2 child can inherit +rom a #arent i+ #arent dies intestate

2 #arent can inherit +rom a child i+ the child dies intestate

Inheritance rights are not only +rom a #ersonE but also through a

#erson. I+ a child@s #arent diesE and therea+ter the #arent@s mother>child@s grandmother? dies intestateE the child can inherit through thedeceased #arent.

2 #arent can inherit not only +rom a childE but also through a

#redeceased child

'3


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o 2 child born to a married cou#le is #resumed to be the child o+ that cou#le.

F 'doptionF CPC #2)

2do#tion severs relationshi# bet;een ado#ted and natural #arents UN(#SS botho+ the +ollo;ing

o ,!atural #arent and ado#ted lived together as #arent"child 7Rnatural

#arent >,? ;as married9cohabiting ;9 the other natural #arent >'? J the time

the ado#ted ;as conceived and died be+ore ado#ted ;as conceivedo '2do#tive #arent ;as the s#ouse o+ either natural #arent KR ado#tive

#arent ;as s#ouse o+ natural #arent ;ho died

!atural #arentE or relative o+ natural #arent can inherit +rom or through the

ado#ted #erson on basis o+ #arent"child relationshi# bet;een ado#ted #erson annatural #arent that satis7es , ' >above? Qnless the ado#tion is by the s#ouse orsurviving s#ouse o+ that #arent

o #)$eption;holeblood brother or sister o+ ado#ted #ersonE or the issue o+that brother or sister

o 1K this means that the ado#tive #arent has to be the s#ouse or surviving

s#ouse o+ the natural #arent that satis7es , ' in order +or the natural

#arentE or a relative o+ the natural #arent to be able to inherit +rom theado#ted child.

F Foster Parent or "tepparentF CPC #22

Botho+ the +ollo;ing must e0ist +or +oster or ste# to have a #arent"child

relationshi#o Relationshi# began during child@s minority and continued throughout the

*oint li+etimes o+ child and +oster9ste#o /stablished by clear and convincing evidence that a legal barrier is the only

reason that the ste#9+oster didn@t ado#t the child

2all v. 1allandingham Facts: 2+ter /arl diedE his children ;ere ado#ted by SillgoreE his ;i+e@s ne;

husband

Ru/e: an ado#ted child is no longer considered a child o+ either natural #arentand loses on ado#tionE all rights o+ inheritance +rom his natural #arents

Reasonin,: to construe the stat stating


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e0#resses a contrary intent. 1ome courts are reluctant to a##ly this rule ;here theado#ted #arty is an ado#ted adult

inary v. 'itiDens ;idelity Bank

Facts: testator@s ;ill devised her estate in trustE income to her husband and 3children +or li+eE andE u#on the death o+ the last surviving bene7ciaryE the#rinci#al ;as to be distributed to the testator@s then"surviving heirs according tothe descent and distribution la;s. Ausband diedE 7rst child to die did so ;9osurviving issueE 'nd child to die died ;9 ' surviving issues. The 3rd childado#ted his ;i+e and then died ;9o another surviving issue.

Sentucy la; allo;ed an ado#ted #erson to inherit through an ado#ting #arent.

6ut 69c the ado#ted #erson ;as an ado#ted adultE ado#ted solely to uali+y asan heirE the ct. ruled that although such an ado#tion +ell ;ithin the e0#ressterms o+ the statuteE such an ado#tion ;as a subter+uge that th;arted theremote ancestor@s intent and shouldn@t be #ermitted

F &.uita$/e adoptionF CPC #2

The natural #arents trans+er custody o+ their child to a cou#le9individual ;ho

#romises to ado#t the child but then +ails to com#lete the #ro#er #a#er;or to

ado#t legally. 2s a##lied in this scenarioE euity treats the child as a child o+ theado#tive #arent +or #ur#oses o+ distributing the ado#tive #arent@s intestate#ro#erty.

,raditional re"uirements:

o an agreement bet;een the natural #arents and the ado#tive #arents to

ado#t the childE can be oral9im#lied9in ;riting

o that the natural #arents +ully #er+orm by giving u# custody o+ the childE

o that the child +ully #er+orms by moving in and living ;ith the ado#tive

#arentsEo that the ado#tive #arents #artially #er+orm by taing the child in and raising

the child as their o;nE ando that the ado#tive #arents die intestate La hand+ul o+ statesE ho;everE a##ly

the doctrine even ;here the decedent died testateM.

7neal v. 0ilkes

Facts: Kneal ;ho had been raised by testator but never +ormally ado#tedE#etitioned ct +or declaration o+ euitable ado#tion

Ru/e: a S to ado#t may not be s#eci7cally en+orced unless the S ;as enteredinto by a #erson ;ith the legal authority to consent to the ado#tion

Reasonin,: consent to ado#tion may only be given by a childs #arent or legalguardian. P@s aunt ;asn@t her legal guardian she ;as only taing over a +amilial

obligation in caring +or the child. b9c #age didn@t have a legal relationshi# ;9 Pshe couldn@t consent to her ado#tion by testator

Ca/ifornia: CPC &455 sho;s that C2 ;ant to bene7t the child" the essence o+


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In light o+ the limitations on the #arent"child relationshi# that arises +rom theeuitable ado#tion doctrineE one ;ay to thin o+ the doctrine is that it does notestablish a #arent"child relationshi# ratherE it merely #rovides a cause o+ action +orthe child against the ado#tive #arent +or breach o+ contract Lthe #romise to ado#tME;ith damages measured by the intestate share the child ;ould have received i+ the#arent had ado#ted the child.

Posthumous Chi/dren

F Posthumous/y $orn chi/d Kne conceived ;hile the +ather is alive but born a+ter +ather@s death

In this case a #resum#tion arises that the deceased husband is the natural +atherE

and the child is treated as alive +rom the moment o+ conce#tion i+ it is to the child@sbene7t >+or inheriting +rom and through the natural +ather?

F CPC #2*G

C2 reuires conceived be+ore death but born a+ter death

Non4!arita/ Chi/dren

F Chi/d $orn out of wed/ocB The inheritance rights o+ a child born out o+ ;edloc varies de#ending on ;hether

the CB is a##lied or the modern trend

'(2t common la;E a child born out o+ ;edloc ;as considered an


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the child is entitled to inherit +rom and through the natural +ather. Proving #aternityturns on ;hether a #resum#tion o+ #aternity arises.

o I+ a #resum#tion o+ #aternity arisesE the child can bring an action to establish

#aternity Land inheritance rightsM at any time.o I+ no #resum#tion o+ #aternity arisesE the action to establish #aternity must

be brought ;ithin three years o+ the child reaching the age o+ ma*ority or it isbarred.

o 2 #resum#tion o+ #aternity arises i+ the +ather acno;ledges the child by

taing the child into his home ;hile the child is a minor and holding the childout as his o;n or i+ the +ather acno;ledges his #aternity in ;riting and 7lesthe ;riting ;ith the a##ro#riate administrative agency or court.

UP'%modern trendith res#ect to a child born out o+ ;edlocE under themodern trendE a ma*ority o+ *urisdictions reuires the natural #arent o#enly to treatthe child as his or her o;n and not to re+use to su##ort the child be+ore that #arentor relatives o+ that #arent can inherit +rom and through the child. The QPC #rovidesthat a #arent can inherit +rom and through the child unless L,M the #arent@s#arental rights ;ere terminatedE or L'ML aM the child died be+ore reaching age ,%Eand LbM there is clear and convincing evidence that immediately be+ore the child@sdeathE the #arental rights o+ the #arent could have been terminated based onnonsu##ortE abandonmentE abuseE neglectE or other actions or inactions o+ the#arent to;ard the child. QPC & '",,4L aM.

'onstru$tion of wills? trusts? and other written instrumentsDoes a childborn out o+ ;edloc uali+y under a ;ritten instrument created by someone otherthan the natural #arentE ;here the instrument contains a class gi+t that other;iseincludes the


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o Child ;as in eutero ;9 decedents genetic material ;9I ' years o+ the date o+

issuance o+ a certi7cate o+ decedents death Doesn@t a##ly in cases o+ human cloning

0oodward v. 'ommissioner of so$ial se$urity

Facts: ood;ard sought survivor bene7ts +or her and her childrenE ;ho ;ereconceived using her deceased husband@s #reviously #reserved semen. Ae ;asundergoing treatmentE so they #reserved his semen in case he ;as le+t sterile. 'years a+ter his death ;i+e gave birth to t;ins conceived through arti7cialinsemination. 112 re*ected ;i+e@s a## +or mother9child survivor bene7ts b9c shedidn@t establish that the t;ins ;ere her husbands

Ru/e: 2 child resulting +rom #osthumous re#roduction may en*oy the

inheritance rights o+


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Q11C rules that #osthumously conceived child uali7es +or social security bene7tsonly i+ under state la; the child ;ould inherit +rom the #redeceased #arent

F Posthumous/y concei+ed chi/dren in wi//s and trusts hether a #osthumously conceived child uali7es as a child9issue9descendant9heir

in a ;ritten doc created by someone other than the natural #arent is a uestion o+the intent o+ the decedent no o+ intestate rules.

+n re artin B

Facts: grantor established $ trusts +or the bene7t o+ his issue9descendants9 hisson died months earlierE but be+ore death he baned his s#erm authoriOedhis ;i+e to use it. Qsing his s#erm she gave birth to a son 3 yrs later and ' yearslater to a second son. Trustee #etitioned the court to consider ;hether theseids ;ere issues and eligible +or distributions o+ the trust.

Ru/e: hen a governing instrument is silentE #ost"conceived children should beaccorded the same rights as children ;ho are conceived #rior to their +atherZsdeath.

Reasonin,: legislatures and courts try to balance com#eting interests. Kn onehandE certainty and 7nality are critical to #ub interest in the orderly admin o+estates. Kn the other handE the human desire to have childrenE albeit by

technologyE deserves res#ectE as do the rights o+ the children born as a result o+this science advancement. /ven though it cant be said that grantorcontem#lated that his descendants ;ould be conceived a+ter sons deathE theabsence o+ s#eci7c intent shouldn@t #reclude a determination that the childrenare members o+ the class o+ issue. The +ather certainly thought his ids ;ouldtae under the trustE but his intent isn@t controlling here. or #ur#oses o+determining the bene7ciaries o+ these trustsE the controlling +actor is therantorZs intent as gleaned +rom a reading o+ the trust agreements. 1uchinstruments #rovide thatE u#on the death o+ the rantorZs ;i+eE the trust +und;ould bene7t his sons and their +amilies eually. In vie; o+ such an overalldis#ositive schemeE a sym#athetic reading o+ these instruments ;arrants theconclusion that the )artin 6. intended all members o+ his bloodline to receivetheir share.

F "urro,acy 1urrogate motherhood arises ;here a married cou#le contracts ;ith a ;oman to

bear a child +or them Lthe child may or may not be the #roduct o+ the husband@ss#erm and9 or the ;i+e@s eggM and the ;oman agrees that the child ;ill be thecou#le@s. here one or more o+ the #arties change their mindE a number o+ diNcultlegal issues arise. The courts disagree over ;ho uali7es as the child@s #arentsunder these circumstances. Ty#ically resolution o+ child custody and su##ort issueshas res *udicata eGect on ;hat constitutes the #arent"child relationshi# +or

inheritance #ur#oses. The intended #arent under the surrogacy agreement is the#resumed #arentE even in the absence o+ a court orderE i+ the #arty acted as a#arent ;9I ' years o+ the child@s birth.

F 'ssisted reproduction same4se? coup/es C2 court held that a ;oman ;ho su##lies her ova to im#regnate her lesbian

#artner in order to #roduce children ;ho ;ould be raised in their *oint home is amother o+ the resulting childrenE as is the #artner ;ho gave birth to the children

'd+ancements

'(


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2dvancementsaddresses the issue o+ ;hether inter vivos gi+ts a decedent madeto an heir should count against the heir@s share o+ the decedent@s #robate estate

F Common aw I+ a #arent maes an inter vivos gi+t to a child a rebuttable #resum#tion arises that

the gi+t constitutes an advancement that counts against the child@s share o+ the#arent@s intestate estate

2ot$hpotall inter vivos gi+ts to the child are added bac >on #a#er" child isn@t

+orced to give gi+t bac? into the #arent@s #robate intestate estate to create thehotch#ot. Then the hotch#ot is divided eually among decedent@s heirs. 2nyadvancement given to a child is deducted +rom that child@s share o+ the hotch#ot.The child only actually receives +rom the intestate estate only their share o+ thehotch#ot minus any advancement the child has received.

RationaleIntestate #ro#erty #asses to one@s children eually because it isassumed the #arent loved his or her children eually and ;anted to treat themeually u#on his or her death. hile that assum#tion is reasonable as a##lied to a#arent@s #robate #ro#ertyE it is uestionable ;hether it should it be e0tended toinclude inter vivos gi+ts a #arent made to his or her children. The logic underlyingthe advancement doctrine is that only by including inter vivos gi+ts can it be said

that the children ;ere truly treated eually.F CPC #2*

Inter vivos gi+ts are only considered advancements i+ oneo+ the +ollo;ing:

o Decedent declares in $ontemporaneous writingthat the gi+t is anadvancement against the heirs share KR that its value is to be deducted+rom the value o+ the heirs share

o The heir acno;ledges in writingthat the gi+t is to be deducted KR is an

advancement KR that its value is to be deducted +rom the heir@s share 2cno;ledgment can be J any time" ;hereas +or donor must be

contem#oraneous ;9 giving the gi+t

The #ro# is to be value as o+ the time the heir cam into #ossession or en*oyment o+

the #ro# KR as o+ the time o+ death o+ decedent >;hichever occurs 7rst?o 6QT i+ the value is e0#ressed in the contem#oraneous ;riting o+ decedent or

acno;ledgement the heir made contem#oraneously ;9 the advancementEthat value is conclusive

I+ the reci#ient +ails to survive the decedentE the #ro#erty isn@t taen into accountin com#uting intestate share o+ reci#ient@s issue UN(#SSthedeclaration9acno;ledgment #rovides other;ise

>not in stat? 2 donor can #rovide in his or her ;ill that the inter vivos gi+t counts

against the donee@s shareE but ;here the intent is e0#ressed in a ;illE thea##licable doctrine o+ satis+action not advancements

F 'd+ancement e?ceeds share Child does not have to give any o+ the gi+t bac to the estate but the child ;ill not

be #ermitted to share in the distribution o+ the #arent@s estate

6ars to "uccession 4 7omicide

1ituations ;here an other;ise eligible taer is barred +rom taing

F 7omicide

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here a #arty ;ho other;ise is entitled to tae +rom a decedent ills the decedentEthe euitable #rinci#le that one should not #ro7t +rom one@s o;n ;rongdoingargues against #ermitting the iller +rom taing.

+n re #state of ahoney

Facts: i+e ;as convicted o+ manslaughter in the death o+ her husband.Ausband died intestateE and the ;i+e claimed her intestate share.

Ru/e: 2 conviction o+ voluntary manslaughter disables the #arty +rom taing

under the decedentZs ;ill or through intestate succession. Reasonin,: VT doesn@t have a homicide statE yet the ct said that it ;ould be

ineuitable to #ermit the ;i+e to #ro7t +rom her o;n ;rongdoing and ado#tedthe constructive trust a##roach to the issue to ensure that the iller did not#ro7t +rom her o;n ;rongdoing

F CPC 1*

Person ;ho ;eloniously / intentionallyills decedent isn:t entitledto:

o Pro#ertyE interestE bene7t under a ;illE trust created by or +or bene7t o+

decedent" or in ;hich decedent has an interest" including general9s#ecial#o;er o+ a##ointment con+erred by ;ill or trust on iller

o any nomination o+ iller as e0ecutorE trusteeE guardianE or conservator or

custodian made by ;ill or trusto any #ro#erty o+ decedent by intestate succession

2ny o+ decedent@s uasi community #ro#erty

+n all of these situations the property interest passes as if the killerprede$eased the de$edent

F Intentiona/ and fe/onious Bi//in, or the illing to bar the iller +rom taing +rom the decedentE the illing must be

intentional and +elonious

anslaughtermust distinguish bet;een voluntary and involuntarymanslaughter.

o Voluntaryintentional illing and comes ;9I the sco#e o+ the homicidedoctrine the iller is barred +rom taing

o Involuntarythe unintentional illing and does not come ;9I the sco#e o+

homicide doctrine the iller is not barred +rom taing

Self defenseilling in sel+ de+ense isn@t +elonious and doesn@t trigger thehomicide doctrine

Assisted sui$idemercy illings and assisted suicide are technically intentionaland +elonious illings and come ;9I the sco#e o+ the homicide doctrine. There is atrend to hold mercy illing not as intentional and +elonious in the meaning o+ thehomicide statute.

F CPC 12 ud,ment of con+iction as conc/usi+eH preponderance of thee+idence

inal conviction +or +elonious and intentional illing is conclusive +or the civil la;

as#ect

In absence o+ 7nal *udgment o+ conviction o+ +elonious and intentional illingE

the court may determine by apreponderan$e of the eviden$e

The 6KP is on the #arty seeing to establish that the illing ;as +elonious and

intentional

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Burden of Proofhether a iller taes +rom his or her victim is a civil issueE nota criminal issue. 2 criminal conviction has res *udicata eGect on the civil issueE butan acuittal is not the 7nal ;ord because the burden o+ #roo+ in a criminal case is#roo+ beyond a reasonable doubtE ;hile the burden o+ #roo+ in a civil case is merely#re#onderance o+ the evidence. I+ the de+endant is acuitted on homicide chargesbut civilly +ound liable +or the decedent@s intentional and +elonious ;rong+ul deathEthe iller is barred +rom #artici#ating in the distribution o+ the victim@s estate.

Remedyi+ the doctrine a##liesE in distributing the victim@s #ro#ertyE treat the

iller as i+ he #redeceased the victim

3iller:s issueThe general rule is that a##lication o+ the homicide doctrinemeans that the iller is treated as i+ he or she #redeceased the victim. I+ a relative#redeceases the decedentE and the relative is survived by issueE o+ten therelative@s share #asses to his or her issue. ith res#ect to #ro#erty #assing underintestacyE this occurs #ursuant to the #er stir#es9 #er ca#ita doctrines.

o +n 'A it depends on whether the vi$tim died testate or intestate

Property $overeda##lies to all ty#es o+ #ro#erty in C2E non#robateE #robatetestateE and #robate intestate

F CPC 1) oint tenants

o 8oint tenantsi+ intentionally an +elonious illing o+ the other *oint tenant theresult is severance o+ the interest o+ the decedent so the share o+ decedent#asses as the decedent@s #ro#erty and the iller has no right to survivorshi#

or real and #ersonal #ro#erty and other +orms o+ co"o;nershi# ;9

survivorshi# incidentsF CPC 11 Insurance $ene0ciaries

o Insurance S@snamed bene7ciary on an insurance #olicy9other S

arrangement ;ho intentionally and +eloniously ills #rinci#al obligee or#erson u#on ;ho li+e #olicy is issued isn@t entitled to any bene7titbecomes #ayable as though the killer has prede$eased decedent

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California Instestate Succession

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