Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All...

Brown: Legal Terminology, 5th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.

Legal TerminologyFifth Edition

by

Gordon W. Brown

PowerPoints prepared by Kimberly Lundy


Chapter 25

Disinheritance and Intestacy


Spousal Protection Against Disinheritance State laws protect surviving spouses

from disinheritance.

Surviving spouse may disclaim provisions of will and claim a statutory sum called elective share or forced share. Referred to as a forced heir.


Spousal Protection – State Provisions Intestate share – Some states allow

disinherited spouse to take amount they would have received if spouse had no will.

Waive spouse’s will – Some states allow surviving spouse to petition to waive spouse’s will. Must be done within 6 months after will is

probated (proved and allowed by court).


Spousal Inheritance on Waiving a Will

Typical formula: Deceased spouse survived by issue:

Surviving spouse receives one-third of real and personal property, limited to $25, 000 outright and a life estate (ownership interest limited to person’s lifespan) in remainder.

Survived by kindred (blood relatives), no issue: $25, 000 outright plus a life estate in one-half of remaining

property.

Survived by no issue or kindred: $25,000 outright plus one-half of remaining property absolutely.


Dower and Curtesy Developed at common law as a way to protect

the spouse of one who owned real property. Dower – the right of a widow to a life estate

in one-third of real property owned by her husband during coverture (marriage).

Curtesy – the right of a widower, if issue of the marriage were born alive, to a life estate in all real property owned by his wife during coverture.


Pretermitted Children Pretermitted children (omitted from a

will) receive nothing unless they can show the omission was unintentional. Burden is on omitted child to show the

omission was unintentional. Must be done through a next friend

(another person) because child cannot sue until reaching majority (becoming an adult).


Homestead Protection

Homestead protection – allows a head of household to designate a house and land as a homestead (property beyond the reach of creditors and claims of others provided the family uses it as a home).


Distinctive RelationshipsRelationships determine inheritance rights:

Half-blood relatives – one parent in common. May inherit equally to whole blood; one-half or only if

no whole blood. Adoption – legal relationship with natural

parents replaced by similar rights and duties toward adoptive parents.

Adopted children inherit from and through adoptive parents as descendents (those who are of the blood stream).


Distinctive RelationshipsRelationships and inheritance rights (cont’d):

Illegitimate children (also known as bastards and non-marital children).

Inherit from mother and maternal ancestors. Inherit from fathers who marry mothers,

acknowledge paternity, or are adjudicated fathers in a paternity proceeding (also known as an affiliation proceeding).


Intestacy Intestacy – dying without a will.

Personal property passes under law of state of domicile.

Real property passes under law where property is located.


Former Laws of Intestacy Laws of descent and distribution – former

laws of inheritance, distinguished real property from personal property. Real property descended to eldest son under

doctrine of primogeniture. If parents had no sons, all daughters took

property as a single heir (coparceners). Personal property was distributed by the

church.


Present Laws of Intestacy Present laws of intestate succession

also distinguish real from personal property. Real property – ownership is vested

(fixed or absolute) in heirs at moment of death.

Personal property – passes to and is distributed by the administrator.


Intestate SuccessionPersonal & Real Property

Allotted to surviving spouse (if any) first. Balance to lineal descendants (direct

downward line from decedent's children). No lineal descendants – balance goes to

lineal ascendants (direct upward line). No living lineal relatives – balance goes to

collateral relatives (siblings, aunts/uncles, cousins, etc.)


Rights of Surviving Spouse Surviving spouse is typically entitled

to: 1/2 of estate if deceased is survived by

issue. Lump sum and 1/2 of remainder if

kindred but no issue. Whole estate if no kindred and no issue. Rights of other heirs, subject to rights of

surviving spouse.

Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All...

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Transcript of Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All...