Intestacy System (Basic Overview)

AuthorBrowne C. Lewis
Pages27-64
27
Chapter Two: Intestacy System (Basic Overview)
2.1 Introduction
On April 21, 2016, superstar Prince Roger Nelson died at the age of 57. A few days later, the
media reported that he had died without a will. Prince, an unmarried man, was survived by his
siblings. People were shocked that Prince died intestate because he left a multiple million dollar
estate. The intestacy system controls the distribution of the part of the decedent’s estate that is not
disposed of by will. In addition, the system comes into play when the probate court completely or
partially invalidates the testator’s will. Intestacy statutes may also be germane in cases where courts
have to define terms that are included in validly executed wills and trusts. The main objective of this
chapter is to examine the system that is in place to deal with the property of persons who die
without leaving a plan for the disposition of their estates. Like Prince, a significant number of people
in the United States die intestate. Thus, it is critical for students to have a good understanding of the
laws governing the intestacy system. The intestacy statutes of all fifty states and the District of
Columbia discuss the amount of the decedent’s estate that the surviving spouse has a right to
receive. The options available to the surviving spouse will be discussed in the next chapter. This
chapter analyzes the disposition of the portion of the decedent’s estate that is left after the surviving
spouse has received his or her share. The first part of the chapter deals with distributions to the
decedent’s descendants. The second part explains the interests ancestors, collaterals and others may
have in the decedent’s estate. The most effective way to teach the material contained in this chapter
is to use the problem-solving method. Therefore, the chapter contains mostly problems.
2.2 Distribution Under the Intestacy System
When the legislature created the intestacy system, the primary goal was to establish a system
that would enable the probate court to carry out the decedent’s presumed intent. The presumption is
that, after the surviving spouse has received a portion of the estate, a reasonable person would want
the remainder of his or her assets divided among his or her children. Thus, the probate system
favors legal children.
1
Chapters ″our, ″ive and Six explains the definition of a “ legal child” for
intestacy purposes.
After the spouse receives his or her elective share, the decedent’s children split his or her
property. If the decedent is a person who never conceived or adopted children, the decedent’s estate
is divided between the decedent’s surviving parent(s). If the decedent is not survived by parents, his
or her estate is distributed to his or her siblings if any survive the decedent. The estate of a person
who dies with no surviving children, parents or siblings goes to that person’s collateral relatives. If a
person’s bloodline has ended, his or her property escheats to the state. I explain the distribution by
telling my students to first look down for children, then look up for parents, and finally to look out
for siblings.
1
For thorough discussion of the inheritance rights of children, please see Browne Lewis, The Inheritance Rights of
Children: Cases and Materials (Carolina Academic Press, 2010).
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2.2.1 Uniform Probate Code § 2-103. Share of Heirs other than Surviving Spouse
Any part of the intestate estate not passing to the decedent’s surviving spouse under Section 2-102,
or the entire intestate estate if there is no surviving spouse, passes in the following order to the
individuals designated below who survive the decedent:
(1) to the decedent’s descendants by representation;
(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to
the surviving parent;
(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or
either of them by representation;
(4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is
survived by one or more grandparents or descendants of grandparents, half of the estate passes to
the decedent’s paternal grandparents equally if both survive, or to the surviving paternal
grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both
are deceased, the descendants taking by representation; and the other half passes to the decedent’s
maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a
grandparent on either the paternal or the maternal side, the entire estates passes to the decedent’s
relatives on the other side in the same manner as the half.
2.3 Descendants
The term “descendant” is broader than the word “child”. For intestacy purposes, it includes
all persons who proceed from the body of the decedent. When a person dies intestate, the estate
goes to his or her lineal descendants. Parents and other ancestors do not have the right to inherit
unless the person does not have any lineal descendants (child, grandchildren, great grandchildren
etc.). Let’s look at some illustrations.
2.3.1 Illustration One
LaToya, a widow, died intestate leaving behind four children, Greta, Malia, Juanita, and
Sasha. LaToya’s estate will be split into four portions because she had four surviving
children and no surviving spouse.
Illustration One shows that it is not complicated to determine the manner in which a
decedent’s property should be divided under the intestacy system. Nonetheless, the formula for
distributing an intestate decedent’s estate can become complex if one or more of the decedent’s
children does not survive the decedent. Under the intestacy system, the decedent’s child(ren)’s
descendants can inherit his or her estate by representation.
2
This means that the issue of the
decedent, including his or her grandchildren, great grandchildren etc., represents his or her deceased
2
This term will be explained later in the chapter.
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children for purposes of the distribution of his or her estate. The next illustration will help the
student visualize this principle.
2.3.2 Illustration Two
Diane died in 1978. She was survived by her husband Clyde and their eight children, Corey,
Gigi, Christopher, Elizabeth, Stephanie, Marcia, Timothy, and Oscar. In 1986, Marcia died
of a massive heart attack while riding a roller coaster. Marcia was survived by her husband,
Jarvis, and her three daughters, Wanda, Ruth and Tracie. When Clyde died in 2000, he was
survived by seven of his children, Marcia’s husband and Marcia’s three daughters.
Clyde’s estate would be divided into eight portions because that is the number of his original
children. ′ach of Clyde’s surviving children would receive a one-eighth share of his estate.
The share of the estate that would have gone to Marcia, the child who predeceased Clyde,
would be divided between her three daughters. As a result, Clyde’s estate would be
distributed as follows: Corey (1/8), Gigi (1/8), Christopher (1/8), Elizabeth (1/8), Stephanie
(1/8), Timothy (1/8), Oscar (1/8), Wanda (1/24), Ruth (1/24) and Tracie (1/24). Since most
intestacy statutes exclude sons-in-law and daughters-in-law, Jarvis, Marcia’s husband, would
not be entitled to receive any part of Clyde’s estate.
In all jurisdictions, the intestacy system allows descendants of the decedent to inherit by
representation. Consequently, Marcia’s daughters would have the right to receive her share of
Clyde’s estate. The definition of “taking by representation” varies from state to state. The shares that
the descendants receive depend upon which one of the three commonly used methods of
representation that is applied. The main difference in each method is where the division into portion
occurs. The decedent’s estate may be divided at the generational level immediately below the
decedent or the generational level where a live descendant exists. This will be explained in more
detail later in this chapter.
2.3.3 Two Important Rules to Remember
The three systems of representation will be discussed in the next section. In order to fully
comprehend how the decedent’s estate will be divided, it is important to know two rules.
Rule One: The descendants whose parents are living do not receive a share of the decedent’s estate.
Example:
Miguel, a widower, had three children, Juan, Carlos and Isabella. Unfortunately, Miguel lost his son
Carlos in a car accident. Carlos was survived by two children, Manuel and Alejandro. Juan has a son
named Mateo. Isabella had two children, Elena and Joaquin. Miguel died survived by Juan, Isabella,
Manuel, Alejandro, Mateo, Elena and Joaquin.
Explanation:

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