Intestacy Quiz

INTRODUCTION

Freedom of Disposition
Dead hand control
Valid Conditions:
Invalid Conditions:
Remedy:

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The Power to Transmit Property at Death

The Public Policy Debate:
Right vs. Privilege

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The Mechanics of Succession

Non-Probate Property
Probate Property

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The Probate Process

Terminology

CPC 32 Devise

CPC 34 Devisee
The Probate Process
Personal Representatives Duties

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INTESTACY

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Introduction
Majoritarian Default
Why people die intestate
Expectancies

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Surviving Spouses Share

Community Property
Separate Property
Distribution of Separate Property

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Who qualifies as a surviving spouse

Domestic Partnerships in CA CFC 297
Separation

CPC 37

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Simultaneous Death
Survival Requirement
CA Clear and convincing evidence approach

CPC 103 Simultaneous Death; community or quasi community property

CPC 220

CPC 221 Application of chapter

CPC 222 Beneficiaries; right to succeed to interest conditional upon surviving

CPC 223 Joint tenants

CPC 224 life/accident insurance

CPC 6403 Failure to survive by 120 hours; deemed predeceased

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Shares of Descendants
Descendants/Issue vs. Children

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Taking Equally- issues of equal degree

Determining which issue takes
California Intestate estate not passing to surviving spouse or domestic partner
Taking equally where issues are of unequal degree
Per Stirpes
CPC 246
Per capita with representation [CA default approach]
CPC 240
Per capita at each generation
CPC 247
Summary
Power to opt out
Where instrument doesnt specify
CPC 245

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Shares of Ancestors and remote collaterals

Collateral relatives
Parentelic Approach
Degree of relationship
Degree of relationship w/ a parentelic tiebreaker [CA Approach]
Stepchildren
Half-bloods

CPC 6406
Laughing Heirs
Disinheritance by negative will

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Adopted Children
Qualifying as a descendant/issue
Establishing a Parent/child relationship

CPC 6450
Adoption

CPC 6451
Foster Parent or Stepparent

CPC 6454
Adult adoptions
Adopted children in written documents
Equitable adoption

CPC 6455

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Posthumous Children
Posthumously born child

CPC 6407

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Non-Marital Children
Child born out of wedlock

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New

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forms of Parentage Advances in Reproductive Technology

Posthumously conceived child
CPC 249.5
Social Security benefits & state inheritance law
Posthumously conceived children in wills and trusts
Surrogacy
Assisted reproduction & same-sex couples

Advancements
Common Law

CPC 6409
Advancement exceeds share

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Bars to Succession - Homicide

Homicide

CPC 250
Intentional and felonious killing

CPC 254 Judgment of conviction as conclusive; preponderance of the evidence

CPC 251 Joint tenants

CPC 252 Insurance beneficiaries

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Introduction

Macro Question This course if focused on who gets your property when you die. It
is supposed to go to whomever you intend it to go to, but that intent is subject to a
number of policy limitations

Freedom of Disposition

The power to transmit property at death In our society money is power. When
someone is alive, he can give or withhold property to affect the behavior of others
? Should people be permitted to give or withhold their property at the
time of death? [i.e. dead hand control]
Dead hand control
o arises when a decedent conditions a gift to a beneficiary upon a beneficiary
behaving in a certain way. By conditioning this gift, the decedent is attempting
to exercise control over the beneficiary even after the decedent has died. These
types of gifts are usually made in the form of an incentive trust.

Arguments in support of testamentary freedom:

o It is the decedents property- since he could have conditioned an inter vivos gift
on a done acting in a certain way, he should have the right to condition a
testamentary gift on a beneficiary acting in a certain way.
o A beneficiary does not have a right to receive property & since a decedent can
completely disinherit a beneficiary, the decedent should be able to condition or
restrict an intended beneficiaries inheritance

Arguments against testamentary freedom:

o Circumstances change, and where a donor dies, he or she no longer has the
capacity or flexibility to take all of these changing circumstances into
consideration in structuring his gifts.
o Some conditions are so contrary to fundamental rights or generally accepted
public policy that they should be considered invalid conditions

Restatement view:
o Favors freedom of disposition. Focuses on the donors intent, and how this
intent should be given affect by law.
o Acknowledges that a donors intent is invalid where it is prohibited or restricted
by an overriding rule of law.
Valid Conditions:

o Conditional gifts are valid unless they violate public policy or judicial
enforcement of a condition would constitute state action violating
constitutionally protected fundamental rights.
Invalid Conditions:
o Some conditions generally have been held invalid as against public policy

Absolute restraints on marriage Gifts conditions on the beneficiary not

marrying anyone [@L as to first marriages] are generally considered to violate the
fundamental right to marry and are void
o Exception: Partial restraints on marriage impose only reasonable
restrictions are generally not contrary to PP and are valid. What constitutes a
reasonable restriction is fact sensitive. Cts pay attention to age of
beneficiary, and time frame of the intended restriction or condition.
o Exception: Temporal/religion requirements Gifts requiring a beneficiary to
marry w/I a reasonable time period, even to someone of a particular Religious
Background have been held valid.
These arguable dont restrict an individuals right to marry; they only
encourage him to marry w/I a certain time frame and w/I a particular
religion
Shapira v. Union National Bank [P.5]
Facts
Fathers testamentary gift to sons required each to be married w/I 7
years of fathers death to a Jewish girl whose both parents were
Jewish. One son sued claiming the condition (1) violated his
fundamental right to marry, protected by the 14th Am. and (2)
violated public policy generally
Rule
A testator may validly impose a restraint on the religion of the
spouse of a beneficiary as a condition precedent to inheriting
under the will.
Reas/Hel (1) Enforcing the conditions didnt constitute sufficient state action
d
to offend the const. b/c the court isnt being asked to enforce the
covenant, only to probate a will
(2) gifts conditioned on a beneficiary marrying w/I a particular class
or religion constitute only a partial restraint on marriage, which is
reasonable and valid and not against PP. A partial restraint of
marriage which imposes only reasonable restrictions isnt void as
against PP.
(3) There was also a gift-over clause where if sons didnt listen the
prop would go to the state of Israel. Showing that Decedent
wanted to benefit the Jewish faith, not restrict marriage per se.
Notes
A condition requiring the beneficiary not to marry a member
of a specific religion is also valid [In re claytons estate]

Where a restriction based on religion unreasonably limits the

beneficiarys right to marry, it will be deemed void, where
there were only 4 or 5 unmarried members of the particular
sect [Maddox v. Maddox]

Religion Requirement Gifts that require a beneficiary to remain faithful to a

particular religion generally are held to violate PP concerning religious freedom and
are invalid

Encouraging separation/divorce gifts requiring B to divorce/separate before

receiving the gift are deemed against PP and void b/c they encourage divorce.
o But gifts that provide for a B only in the event of a separation are not
necessarily deemed to encourage divorce.
o What controls here is the decedents dominant intent to encourage the
separation or merely provide support in the even of separation.

Promoting family strife gifts conditioned on family members ostracizing/ or

not communicating w/ other family members are generally against PP and void

Property destruction directive People are free to destroy their property while
they are alive- but they are not free to destroy prop upon their death.
o Inter vivos destruction of property carries an economic cost that deters owners
o Destruction at death doesnt have any meaningful economic cost for the
decedent and deprives society of the opportunity to determine the best use of
the property
Remedy:
o where a conditional gift violate PP, the critical variable is whether there is a
gift-over clause a clause in the instrument that provides where the gift is to
go if the condition or restriction is not satisfied.

Gift over clause where one exists and the conditional gift is found to violate PP,
courts typically will strike the condition as void as against PP, but they wont give
the property to the beneficiary subject to the condition. Instead, the prop will be
distributed to the alternative beneficiary under the clause.

No Gift over clause Where no gift over clause exists and a condition violates
PP, courts will usually strike the void condition and permit the beneficiary subject
to the condition to take the prop free and clear of any conditions

The Power to Transmit Property at Death

The freedom to transmit at death presumes the power to transfer property at death.
Historically The power to transfer at death to ones heirs [spouse, children, family]
was recognized before the power to transmit by will. The scope of ones power to
transfer prop at death is a matter of civil law as opposed to natural right
Culturally the scope of ones power to transfer prop at death varies in diff
societies. In many countries children cant be disinherited. In some societies one cant
will away his property; it can only pass to heirs.
State variations all states recognize the power to transfer prop at death, but the
details of what constitutes a valid will, and to whom the prop will pass if there is no
valid will varies from state to state
Demographics most state inheritance schemes are based on the notion of family.
Which is why intestate schemes presume that one would have intended to transfer
prop to their fam. As the family dynamic shifts, there is increasing pressure to
recognize non-traditional families and relationships w/I a states inheritance scheme.
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The Public Policy Debate:

Pro A person should have the power to transfer prop at death b/c such a policy is
consistent with private property.
o Encourages and rewards a life of hard work
o Promotes family ties
o Encourages individuals to accumulate wealth for old age and to give to family
o Encourages family members to love, serve, and protect their elders

Con Shouldnt have the power to transfer @ death b/c such a policy perpetuates
economic disparity and discrimination and constitutes an unearned windfall to
those who happen to have wealthy relatives
o Such unearned wealth creates powers and privileges that are undeserved and
denies equal opportunity to all children

Rebuttal inter vivos investments in human capital [health, education, culture,

and connections] arguably account for more disparity in opportunities and wealth
than inherited wealth.

Logical options 3 viable options for how society can handle the succession of a
decedents property:
o Prevailing freedom of disposition if the decedent expresses his intent and, if
not, according to a states intestate scheme [which is the arguable presumed
intent of the average person]
o Forced Succession where family members would be entitled to decedents
property [or if no fam then escheat to the state]
o State confiscation where a decedents property rights would terminate upon
death and the state would own the property by operation of law

Permit but tax historically the US has tried to balance these competing PP
arguments by permitting wealth to be transferred upon death but imposing an
estate and gift tax at significantly higher rates than those applied to earned
income

Phased-in elimination of estate tax Anti-estate tax proponents hold the

upper hand currently- this is reflected by the most recent amendments to the fed
estate and gift tax laws that increase the basic fed estate tax exclusion amount for
estates of people who die in 2013 to 5,250,000. For estate above that amount, the
estate tax rate starts at 40%
Right vs. Privilege

Governmental power to regulatepresumed that the power to pass ones prop

at death was not a constitutionally protected right

The Mechanics of Succession

Probate:
Who takes
Decedents prop @
death IT
DEPENDS

- Testate Valid Will

- Intestate No Will

Non- Probate:
-

- Joint Tenancy
Life Insurance/ POD K
Life
Estates/Raminders
Inter vivos trust

Macro Issue Who gets the decedents property when he dies?

o The answer turns on what type of property is involved: non-probate or probate

Probate vs. Non-Probate property A will only disposes of a decedents probate

property. Probate is the default- but there are a number of ways to dispose of prop w/o
passing through probate [these are non-probate]
Non-Probate Property
o Historically only 4 types of prop have qualified as non-probate

Joint Tenancy JTs hold prop concurrently. They own it in whole and in fractional
shares.
o The key to JT is the right to survivorship- wherein upon the death of one JT, his
factional share is extinguished, and the shares of the surviving JTs are
recalculated.
o Technically no property interest passes upon the death of a JT

Life Insurance An agreement between the insured and insurance company

that, upon the insureds death, benefits will be paid to the beneficiaries selected by
the insured. LI proceeds arent probate property and are distributed directly to the
Bs w/o being subject to the probate process.
o @CL LI Ks were the only type of K with a Payment-On-Death [POD] clause that
qualified as a valid will substitute
o Modern trend- POD Ks a life insurance policy is a K with a POD clause.
Modern trend recognizes all Ks with POD clauses as valid, non-probate
transfers exempt from the probate process

Legal life estates & remainders when a life estate holder dies, although the
right to possession passes to the person holding the remainder, that transfer is the
result of the grantors division of property between the life estate and remainder,
not the result of the deceased life tenant passing a prop interest. This type of
property avoids probate
o Transfer on Death Deed [modern trend] permits a transferor to create a
revocable deed that doesnt pass any interest until the party dies. His
arrangement permits a decedent to transfer his or her interest in real property
upon death w/o the transfer being subject to the probate process.

Inter vivos trust A trust is an artificial legal entity that holds and manages the
property placed in the trust. There are several diff types of trusts: inter vivos
trusts, testamentary trusts, and Uniform Testamentary Additions to Trusts Act
[UTATA] trusts.
o Of the 3, only property transferred to an inter vivos trust during the life od
the party avoids passing through probate
Non-Probate property takers non-probate prop goes to the transferees identified
in the written instrument properly creating the non-probate property arrangement.
Doesnt pass through probate
Probate Property
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o if prop in question is not non-probate it goes to the default probate property

system.

Will Vs. Intestacy who takes probate property depends on whether decedent
had a valid will.
o A properly executed will constitutes an expression of a persons intent as to who
should take his property at death
o If decedent doesnt have a will or if the will doesnt dispose of all the
decedents prop, the property passes via intestacy to the decedents heirs
o If decedent takes no steps to opt out of intestacy all his prop passes through
intestacy intestacy is the default
o Opting out of intestacy can opt out of intestacy by executing a will or a
will substitute [recognized non-probate methods of transferring property] if
properly executed a will substitute then prop avoids probate BUT if one opts
out of intestacy by a will, the property still passes through probate

The Probate Process

Probate Default Non-Probate passes pursuant to the instrument w/o passing

through probate. Probate prop passes through the probate system
Probate Administration Probate is very complex- and varies state to state
Terminology

Testate Decedent who dies w/ a will

Testator Male who executes a valid will

Intestate Dies w/o a will- prop distributed according to state statute on descent
and distribution
o If a decedent dies w/ a will that disposes of some but not all his prop- then he
dies both testate and intestate
Testatrix Female who executes a valid will

Devise Gift of real property under a will [devise, devises]

o Today used for testamentary gifts of either real or personal property
CPC 32 Devise
(a) "Devise," when used as a noun, means a disposition of real or personal property
by will, and, when used as a verb, means to dispose of real or personal property
by will.

Devisee Beneficiary receiving real property under a will

CPC 34 Devisee
(a) "Devisee" means any person designated in a will to receive a devise.
(b)In the case of a devise to an existing trust or trustee, or to a trustee on trust
described by will, the trust or trustee is the devisee and the beneficiaries are
not devisees.

Bequest Gift of personal prop under a will [bequeath, bequeaths]

Legacy Gift of money [modern trend: of any personal property] under a will
Legatee Beneficiary receiving money [modern trend: any personal property]
under a will
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Personal Representative Person appointed by probate court to oversee

administrative process of wrapping up and probating the decedents affiars

Executor What the personal rep is called if the decedent ties testate and the will
names the personal rep

Administrator What personal rep is called if decedent dies intestate or testate

but the will fails to name a personal representative

Probate Court The state court w/ special JD over determining who is entitled to
receive the decedents probate property

Statute of Descent and DistributionIf a decedent dies intestate as to some

or all of his prop- the prop will be distributed to those individuals identified to
receive such property under the states statute of descent and distribution

Heirs At CL if a decedent dies intestate, the decedents real property was said to
descend to the decedents heirs

Next of Kin At CL if a decedent died intestate, the decedents personal property

was distributed to the decedents next of kin
The Probate Process

Important b/c:
o Provides orderly transfer of title for decedents prop
o Ensures creditors receive notice, and opportunity to present their claims, and
payment
o Extinguishes claims of creditors who do not present their claims to probate
court
o Ensures that the decedents property is properly distributed to those entitled to
receive it

(1) Opening ProbateProbate ct in county where decedent was domiciled @

time of death has primary/domiciliary JD over the decedents probate estate. Ct
has JD over personal prop & real prop located w/I that JD
o Presenting death certificate opens probate
o Depending on ct- ct issues letters testamentary appointing an executor or
letters of administration appointing and administrator
o Majority of JDs require notice to interested parties before selection and
appointment of executor or administrator
o Ancillary JD may be necessary if decedent owned real prop located in a diff
JD from domicile.
Ensures that local creditors in the JD where the real prop is located receives
notice and opportunity to present their claims
That there is compliance with that JDs recording system

(2) Will Contests If a pty wishes to file a claim challenging the validity of a will
offered for probate, most JDs have a statute requiring that the contest be brought
in a timely manner after probate is opened or the claim is barred

(3) Probate administration Once ct issues its letter, the personal rep is
authorized to begin his responsibilities

Personal representatives powersSome JDs require probate ct supervision and

authorization at almost every step, thereby incurring greater expense for the estate
o Other states permit unsupervised admin under most circumstances, with one
final accounting being filed w/ the probate ct at the end.
Personal Representatives Duties

Inventory Decedents assets ascertain and take control of decedents probate

prop, which is then inventoried for the probate court

Give notice & pay creditors gives notice [usually by publication, but known
creditors may be entitled to actual notice] of the opening of probate.
o Decedents creditors are required to file any and all claims w/I a set statutory
period or their claims will be barred forever
o Personal rep must pay those creditors who present valid claims w/I the
prescribed time period
o Personal rep must also file state and federal estate tax returns, and if
necessary, pay any taxes due

Distribute decedents probate propertywhatever is left after paying

creditors claims is the distributed to those entitled to receive under the will or
under the states intestacy statutes
Costs & delays of probate

Probating an estate is expensive and ties up decedents probate assets during the
process

Costly b/c of probate court fees, and other miscellaneous fees

Even probate of a simple, uncontested estate takes anywhere from 1-2 years

Probate & Titles property

Probate is necessary to transfer title to real and personal assets that were titled in
decedents name. Where asset has a written form of title in decedents name, a
probate ct order is necessary to transfer title properly

Intestacy
Introduction

Intestacy is the Norm Despite benefits of non-probate & wills about the
population dies intestate.
o Any prop not disposed of by non-probate falls to probate, and any probate not
disposed of by will falls to intestacy where it is distributed to decedents heirs
o Partial intestacy A decedent can die both testate and intestate if will
doesnt dispose of all property
Majoritarian Default
o intestate scheme is based on the decedents presumed intent, but intestate
scheme cant reflect the presumed intent of every possible decedent.

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o Too many varied relationships todays society. So intestate schemes are based
on a majoritarian default approach that guesstimates the probable intent of the
average individual in that situation.
Why people die intestate

Psychologically estate planning forces people to accept their own mortality,

and many prefer not to think about the fact that they will one day die

Financially drafting and executing a will can be time consuming and expensive.
Most non-probate will substitutes are cheaper and easier to create than the
traditional will.
Intestate Statutes Where decedent dies intestate, distribution of his prop is
governed by the states statute of decent and distribution
Tiered Approach the categories of possible takers are listed in order. Any property
not passing to the surviving spouse passes to the next tier that there is a live taker.
Once that tier is determined, all the property that the surviving spouse did not take is
distributed to that tier. No property falls to a lower tier. [this is where there is no
community property law]
Heirs vs. Heirs apparent to qualify as an heir [an intestate taker] the heir must
survive the decedent. So a person who is alive only has heirs apparent not heirs [yet]
Expectancies
o most children expect to receive some prop from parents when they die. This
expectancy is not a property interest. The heirs apparent needs to survive the
decedent to take anything, and even if the heir apparent survives the decedentthe decedent can defeat the expectancy by transferring inter vivos or devising a
will.
o Transferability b/c expectancy isnt a property interest, it cant be
transferred. BUT an heir apparent can agree to transfer his expectancy for
valuable consideration- and later if he tries to avoid enforcement of the
agreement on the grounds that an expectancy isnt transferrable, a court will
enforce the agreement if it is fair and equitable under the circumstances.

Surviving Spouses Share

Community Property

Asset acquired or income earned by a married person while with that spouse.
o (1) Surviving Spouse gets 100% of community/quasi community property
[his/her half + half of decedent]
o BUT Decedent can devise his half as he wishes- but if it is intestate then it goes
to spouse
Separate Property

anything acquired by a spouse before the marriage, during the marriage by gift,
devise, or bequest, and after the parties separate
o Assets brought into the marriage [before marriage]
o Inheritance of decedent
o Gifts to decedent
Children/Child alive or dead but survived by issue
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All 100% community Property goes to surviving

spouse

Distribution of Separate Property

S= Surviving Spouse
Decedent has NO surviving
Issue, Parent, brother, Sister
100% to S
or Issue of Sibling
Decedent has only 1
[50%] of Separate
surviving Child OR Issue of
prop to S
deceased child
Decedent has no issue BUT
of Separate prop to
has Parent, Parents, Parents
S
Issue, Issue of either Parent
Decedent has more than 1
1/3 [33.33%] to S
child
Decedent leaves 1 child
AND issue of 1 or more
1/3 to S
deceased children
Decedent leaves issue of 2+
1/3 to S
deceased children

Who qualifies as a surviving spouse

Domestic Partnerships in CA CFC 297

2 adults- chosen to share in intimate and committed relationship

BOTH persons must file a Declaration of Domestic Partnership w/ Secretary of State
& @ the time of filing ALL of the following must be met:
o Both live at a common residence
Doesnt mean that the legal right to possess the common residence is in
both of their names
2 people have a common residence even if one or both have an additional
residence
Still common residence if one leaves but intends to return
o Neither is married/in domestic partnership with another [that hasnt been
dissolved]
o 2 persons not related by blood in any way that would prevent them from being
married in CA
o Both are at least 18 yrs
o Either of the following:
Members of the same sex
If persons of opposite sex 1 or both above age 62
o Both are capable of consenting to domestic partnership

Separation

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Spouses who are legally separated still qualify as spouses for purposes of intestate
distribution. Even if they filed for divorce, they are still married until the court
enters the final judgment or decree of dissolution
CPC 37
o b)If domestic partnership was terminated before death of one spouse but
Notice of Termination wasnt filed by either party prior to the death- then the
domestic partner who survives is treated as a surviving spouse/domestic
partner entitled to the same rights

Simultaneous Death

Survival Requirement

To receive property from a decedent the taker must survive. How long, and the
burden of proof varies from state to state. If the claimant fails to meet the survival
requirement, the claimant is treated as if he or she predeceased decedent
CA Clear and convincing evidence approach

2 step process:
o 1) did the claimant actually survive the decedent
o 2) did the claimant legally survive the decedent
o Even If the claimant actually survives but doesnt legally survive decedent,
then the claimant is treated as if he predeceased the decedent

Apply separately to each decedent

o Analysis of first spouse
o Analysis of second spouse
CPC 103 Simultaneous Death; community or quasi community property

Except as provided in 224 [insurance] Community/quasi in simultaneous

death is distributed to each spouse
CPC 220

Except as provided in 220-226 if title of property or transfer of prop depends on

priority of death & cant be established by C&CE that one survived other the
property of each person must be distributed as if that person had survived the
other

So A& B die simultaneously- A treated as if survived B, and B treated as if survived

A
CPC 221 Application of chapter
Chapter doesnt apply where 103 [simultaneous death- community prop], 6211
[Will beneficiaries must survive last surviving spouse by 120 hours], or 6403
[failure to survive by 120 hours] applies
Chapter doesnt apply in case of trust, deed, K of insurance or other situation
where
o Provisions made explicitly dealing w/ simultaneous death or providing for
distribution different from these provisions
o Provision is made requiring survival for a stated period to take or providing
for a presumption as to survivorship that results in a diff distribution then
this chapter
CPC 222 Beneficiaries; right to succeed to interest conditional upon
surviving
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 If property disposition is conditional upon surviving another person & cant be

established by C&CE, the beneficiary is deemed not to have survived the other
person
If prop is disposed of so that one of 2 or more beneficiaries would have been
entitled to prop if he survived the others & cant be established, then prop shall be
divided into as many equal portions as there are beneficiaries and that portion
shall be distributed as if beneficiary survived the others
CPC 223 Joint tenants
Cant be established by C&CE- then create a TIC and split evenly as if a JT survived
the other [applies w/ 2 people and multiple]
CPC 224 life/accident insurance
Insured & beneficiary died and cant be established that beneficiary survived
insured- then administered as if insured survived beneficiary
EXCEPTif policy is community property of insured & spouse of insured and there
is no other alternative beneficiary except state or personal rep of insured in that
case proceeds distributed as community property under 103
CPC 6403 Failure to survive by 120 hours; deemed predeceased
In CA the time is 120 hours i.e. 5 days. And in such a case if not survive by 5 days,
then that person is deemed to have predeceased decedent for purposes of
intestate succession
If it cant be established by clear and convincing evidence that they survived for 5
days then it is deemed that the person failed to survive for the required period
Application of 120 hour rule doesnt apply if it means that the property would
escheat to the state

Shares of Descendants

After the spouses share is set aside, children and descendants of deceased
children take the remainder of the decedents property to the exclusion of
everyone else
Descendants/Issue vs. Children
Descendant/Issue is much broader than the term children
Descendants/issue are all of ones offspring ones children, their children
[grandchildren], great-grand children and so on
Ones children are ones immediate offspring, that is, only the first generation of
ones issue
Taking Equally- issues of equal degree
Where all of the decedents children survive the decedent, it is easy to divide
equally
EX: Decedent dies survived by 3 children A, B, and C 1/3 each among the 3
children
Determining which issue takes
Issue of predeceased child takes in his place if Decedent had a child who
predeceased him, but is survived by issue, his issue will share in the distribution.
o This issue takes by representation- he steps up and represent the
predeceased relative
If a person takes his or her issue does not
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 Absent adoption, only blood relatives qualify as heirs So if B [son] dies

before A [father], and B is survived only by his wife C and Cs children from a prior
marriage- neither C nor her children are entitled to share in the distribution of As
intestate property [except if that is a last resort as seen in 6402(e)]

California Intestate estate not passing to surviving spouse or domestic

partner
This is for the part of the estate that isnt passing to surviving spouse- or there is
no surviving spouse. So after those shares are allocated, this is how you distribute
the rest.
Each level is in order, and once one of the levels is satisfied YOU STOP the next
level does not get a share
If
Then
1.a. Where D
All issues same
Each issue takes equally
has Issue
degree of kinship
1.b. Where D
Issues of unequal
Those of more remote degree take under
has Issue
degree
240 i.e. per capita w/ representation
2. No surviving issue
To Parent or parents equally
3. No surviving issue, No surviving parent To issue of parents, issue of either parent
[sibling/step sibling/ half sibling] issue
taking if all same degree of kinship to
decedent
If unequal degree those of more remote
degree take in manner in 240 w/rep.
3. No surviving issue, parent, or issue of
To the grandparent(s) equally OR to the
parent, but decedent is survived by 1 or
issue of those grandparents if there is no
more grandparents or issue of
surviving grandparent the issue taking
grandparents
equally if all same degree if unequal
degree those more remote take per 240
4. No surviving issue, parent or issue of a To issue of predeceased spouse, issues
parent, grandparent or issue of a
taking equally if all of same degree, if
grandparent, but issue survived by the
unequal degree per 240
issue of predeceased spouse
5.a. No surviving issue, parent or issue
To the next of kin in equal degree
of parent, grandparent or issue of
grandparent, or issue of predeceased
spouse, but survived by next of kin
5.b. 2 or more collateral kindred in equal Those who claim through the nearest
degree who claim through different
ancestor are preferred to those claiming
ancestors
through an ancestor more remote
6. no surviving next of kin, no surviving
To the parent or parents equally, or to the
issue of predeceased spouse, but
issue of those parents if both are
decedent survived by parents of
deceased, the issues taking equally if they
predeceased spouse or the issue of those are all of the same degree of kinship to the
parents
predeceased spouse

7. None of the above

If of unequal degree those of more remote

degree take per 240
Escheats to the state
15

Taking equally where issues are of unequal degree

Decedent dies intestate, and has no surviving spouse

The problem we are faced with:
o At which generation should the decedents property be divided first?
o At whichever generation the estate is divided first, how many
shares should the estate be divided into? answer is always the
same= one share for each descendant who is alive at that generation, and
one share for each descendant at that generation who is dead but survived
by issue
o How are the dropping shares distributed?
Dropping shares are the shares for the descendants who are dead
but survived by issue
Should these dropping shares drop by bloodline to the issue of that
party? Or should they be pooled and distributed equally among the
eligible takers at the next generation?
o These distribution schemes [per capita, per stirpes, and per capita at each
generation] also apply in situations where a decedents property is
distributed to the issue of collateral relatives
Per Stirpes
CPC 246
Always make the first division of decedents property at the first generation of
descendants, whether there are any live takers or not; the dropping shares then
drop by bloodline

16

Who takes Decedents property assuming no surviving spouse?

o Step 1 divide at first generation [A-B-C], even if everyone in that
generation is dead
o Step 2 one share given to each party who is alive, and one share to each
party who is dead but survived by issue
A, B, and C each receive 1/3
o Step 3 the shares of each dead issue survived by issue drops by bloodline.
Each share drops only to the issue of the predeceased party.
Afor As 1/3 drop to the next generation and divide that share for
each party alive at that level and one share for each party who is dead
but survived by issue. 1/6 goes to E and 1/6 goes to F
E Es 1/6 divided equally to K, L, and M [1/8 each]
B Bs 1/3 drops by bloodline to G. B/c G is alive and takes, N takes
nothing
CCs 1/3 drops by bloodline. Divide Cs 1/3 giving one share for each
party who is alive, and each party who is dead but survived by issue
H does not take b/c predeceased C and not survived by issue
I is alive so I gets his share
J is dead but survived by O and P- so Cs 1/3 is split 1/6 to I and
1/6 to J.
o Js 1/6 drops giving 1/12 to each of O and P
Per capita with representation [CA default approach]
CPC 240
AKA modern per stirpes
Make the first division of decedents property at the first generation where there is
a live taker; the dropping shares then drop by bloodline

17

Step 1 always divide at the first generation where there is a live taker. So, at Es
generation
Step 2 one share is given to each party who is alive, and one share given to
each party who is dead but survived by issue
o F, G, I Are alive = 3
o E, J Are dead but survived by issue and H is dead and not survived by issue
so he doesnt count= 2 shares
o Total = 5 shares so 1/5 each
Step 3 dropping shares are distributed by bloodline
o Js 1/5 goes to O and P- giving each 1/10
o F,G,I each take their 1/5
o Es 1/5 goes to K, L, and M so 1/15 to each
Per capita at each generation
CPC 247
Benefit
o Better than other 2 approaches, which commonly result in unequal shares of
descendants of equal degree
o Ensures that all descendants who are equally related to decedent take
equally. Per capita at each generation pools the dropping shares [shares for
descendants who are dead but survived by issue]. This means that the
dropping shares are added together and then divided equally among all the
eligible takers at the next generation
Always make the first division of decedents property at the first generation where
there is a live taker, and the dropping shares drop by pooling combine them and
distribute them equally among the eligible takers at the next generation

Step 1 always divide at the first generation where there is a live taker, so Es
generation
Step 2 One share given to each party who is alive and to each party who is dead
but survived by issue
o F, G, and I = 3
o E, J =2
o 1/5 each [none for H]
Step 3 pool the dropping shares.
o F, G, and I each get 1/5
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o E and J each have 1/5 left those are pooled so 1/5+1/5=2/5

Divide that total equally among the eligible takers at the next
generation
K, L, M, O, P are all eligible [5] so divide the remaining 2/5 by 5= 2/25
each

Summary

Where to
divide
How many
shares is
estate divided
into @ that
gen
Dropping share

Per stirpes

Per capita w/ rep

Per capita @ each

gen
First gen live taker

First gen

First gen live taker

1 share for each live

party; one share
each dead party
that is survived by
issue
Drop by bloodline

1 share each live party; 1

share each dead party
survived by issue

One share each live

party; one share
each dead party bur
survived by issue

Drop by bloodline

Drop by pooling

Power to opt out

Each JD has a default approach as to how to distribute among issues. The default
always applies to intestate distribution. An individual can opt out of a JDs default
approach by executing a valid will or nonprobate instrument that expressly
provides for an alternative method of distribution
Where instrument doesnt specify
CPC 245
Will, trust, or other instrument calls to be taken in manner provided in 240 or will,
trust, instrument that expresses no contrary intention provides for issue or
descendants to take w/o specifying the manner- then it should be distributed per
capita w/representation
The following words w/o more as applied to issue or descendants is NOT an
expression of contrary intention [so apply default 240]
o Per capita when living members of designated class arent from same gen
o Contradictory wording like Per capita and per stirpes or Equally by right of
representation

Shares of Ancestors and remote collaterals

When a decedent dies intestate his estate is distributed first to his immediate
family
BUT if there is no surviving spouse or issue, the property flows UP to the decedents
ancestors and collateral relative
Collateral relatives
decedent, decedents spouse, decedents issue are all immediate family. All of
decedents other relatives are collateral

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 First line collaterals decedents parents [M=mother; F=Father] and their other
issue b/c their line is the first line removed from decedents immediate family
Second line collaterals decedents grandparents [GM=Grandmother;
GF=Grandfather] and their other issue [other than decedents parents]
Third line collateralsGreat grandparents [GGM=great grandmother;
GGF=Great grandfather] and their other issues [other than decedents
grandparents] and so on.

Parentelic Approach
Starts w/ decedents immediate family and them moves out along collateral lines,
starting w/ closer lines and moving to the more remote. This approach keeps going
out by collateral lines until there is a line in which there is a live taker. The property
is then distributed to the decedents relatives in that parentelic line.
20

o Distribute the property according to per stirpes, per capita, or per

capita at each generation depending on state default [per capita in CA]
1) Start by going out by parentelic lines until you find the first collateral line with a
live taker.
2) the property is then distributed to the takers in that line

No live takes in parents line [M, F] [first line collaterals]

No live takers in GPs line [second line collaterals]
There are live takers in the GGP line [third line collaterals] B,C, and D

Once a collateral line w/ a live taker is found, the property is distributed in

that line in CA B,C, and D would take w/ representation depending on
degree of relationship [Make the first division below the common
ancestor tier]
Degree of relationship
Focuses on degree of relationship between decedent and claiming relative,
regardless of which parentelic line the taker is in
Under this approach one simply counts the degrees of relationship between the
decedent and the relative, and those relatives of the closest degree [lower degree]
take to the exclusion of those of a more remote [higher] degree.
Some JDs start w/ parentelic approach but at some point [either after first or
second collateral line] switch to the degree of relationship approach
Determining degree of relationship count from the decedent up to the
closest common ancestor [the head of the parentelic line a grandparent or great
grandparent and so on], and then down to the live relative

21

 Decedent dies & is only survived by A,B,C, and D

To calculate degree of relationship between A, B, C, and D to decedent
identify the closest common ancestor both parties share. Count steps up
from decedent, to that common ancestor and then down from the common
ancestor to the party in question
For A closest for decedent and A are the GGGPs
o Count up to closest common ancestor =4 [M, GP, GGP, GGGP]
o Count down from the closest common ancestor to A =1 [GGGP to A]
o Decedent is related to A by the 5th degree.

For B & C CCA is GGP=3 [M, GP, GGP] then down =2 [GP, B] so B & C are
related to decedent by the 5th degree
For D up= [F, GP, GGP]; Down= 3 [GU, FC, D] so related by the sixth
degree
Under the degree of relationship approach, those relatives of a closer degree take
to the exclusion of those of a more remote degree
o A, B, and C are of the 5th degree, and D is the 6th degree
o SO A, B, and C take to the exclusion of D. A, B, and C split the estate equally.

Degree of relationship w/ a parentelic tiebreaker [CA Approach]

Step 1 determine the degree of relationship of the possible takers. Those of a
closer degree take to the exclusion of those of a higher, more remote degree.
Step 2 if there are multiple takers sharing the lowest degree of relationship,
those in the closer parentelic/collateral lines take to the exclusion of those in the
more remote parentelic/collateral lines
Stepchildren

22

6402(e) In CA they take if no surviving issue, parent or issue of a parent,

grandparent or issue of a grandparent, but the decedent is survived by the issue of
a predeceased spouse
Half-bloods
Relatives who share only one common parent as opposed to traditionally sharing
both parents
CPC 6406
Half-bloods inherit the same as whole bloods
Laughing Heirs
intestate succession by distant relatives who are so far removed from the decedent
that they likely didnt know him and suffered no sense of bereavement upon
learning of his death a bit more than states have abolished this drawing the
line @ grandparents and their descendants i.e. no tracing inheritance through
great-grandparents
CA cuts it off at grandparents and thus does not permit laughing heirs
Disinheritance by negative will
Assuming one does not want a particular heir to take any of his or her intestate
property, what must one do to disinherit that particular heir?
Under the modern trend/ UPC approach, a decedent can disinherit an heir by
properly executing a will that expresses such an intent, even if some or all of the
decedents property passes through intestacy and the heir otherwise would have
qualified to take some of the property. The heir is treated as if he or she
predeceased the decedent. (If the heir is survived by issue, they take by
representation unless the will expressly disinherits them as well.)

Adopted Children

Qualifying as a descendant/issue
To qualify, a party must establish a legally recognized parent-child relationship

Establishing a Parent/child relationship

CPC 6450
The starting point is establishing the relationship iby applying the
standard/traditional biological test. The woman who contributes the egg and gives
birth to the child is the childs natural mother. The man who contributes the sperm
is the natural father.
Parents married if a child is born and natural parents are married, a parentchild relationship exists/arises for inheritance purposes
o Inheriting from and through parent-child relationship establishes
inheritance rights in both directions.
A child can inherit from a parent if parent dies intestate
A parent can inherit from a child if the child dies intestate
Inheritance rights are not only from a person, but also through a
person. If a childs parent dies, and thereafter the parents mother
[childs grandmother] dies intestate, the child can inherit through the
deceased parent.
A parent can inherit not only from a child, but also through a
predeceased child
23

o A child born to a married couple is presumed to be the child of that couple.

Adoption
CPC 6451
Adoption severs relationship between adopted and natural parents UNLESS both
of the following
o 1Natural parent and adopted lived together as parent-child OR natural
parent [1] was married/cohabiting w/ the other natural parent [2] @ the time
the adopted was conceived and died before adopted was conceived
o 2Adoptive parent was the spouse of either natural parent OR adoptive
parent was spouse of natural parent who died
Natural parent, or relative of natural parent can inherit from or through the
adopted person on basis of parent-child relationship between adopted person an
natural parent that satisfies 1 & 2 [above] Unless the adoption is by the spouse or
surviving spouse of that parent
o Exception wholeblood brother or sister of adopted person, or the issue of
that brother or sister
o SO this means that the adoptive parent has to be the spouse or surviving
spouse of the natural parent that satisfies 1 & 2 in order for the natural
parent, or a relative of the natural parent to be able to inherit from the
adopted child.
Foster Parent or Stepparent
CPC 6454
Both of the following must exist for foster or step to have a parent-child
relationship
o Relationship began during childs minority and continued throughout the
joint lifetimes of child and foster/step
o Established by clear and convincing evidence that a legal barrier is the only
reason that the step/foster didnt adopt the child
Hall v. Vallandingham
Facts: After Earl died, his children were adopted by Killgore, his wifes new
husband
Rule: an adopted child is no longer considered a child of either natural parent
and loses on adoption, all rights of inheritance from his natural parents
Reasoning: to construe the stat stating on adoption a child no longer shall be
considered a child of either natural parent to allow dual inheritance would
bestow upon an adopted child a superior status. B/c an adopted child has no
right to inherit from the estate of a natural parent who dies intestate, it follows
that the same child may not inherit through the natural parent by way of
representation.
This doesnt apply in CA see CPC 6451
Adult adoptions
Generally, adopted adults are treated the same as adopted children for inheritance
purposes
Adopted children in written documents
Generally, cts presume that an adopted child is included in a class gift in a written
instrument to children issue heirs or Descendants unless the instrument
24

expresses a contrary intent. Some courts are reluctant to apply this rule where the
adopted party is an adopted adult
Minary v. Citizens Fidelity Bank
Facts: testators will devised her estate in trust, income to her husband and 3
children for life, and, upon the death of the last surviving beneficiary, the
principal was to be distributed to the testators then-surviving heirs according to
the descent and distribution laws. Husband died, first child to die did so w/o
surviving issue, 2nd child to die died w/ 2 surviving issues. The 3rd child
adopted his wife and then died w/o another surviving issue.
Kentucky law allowed an adopted person to inherit through an adopting parent.
But B/c the adopted person was an adopted adult, adopted solely to qualify as
an heir, the ct. ruled that although such an adoption fell within the express
terms of the statute, such an adoption was a subterfuge that thwarted the
remote ancestors intent and shouldnt be permitted
Equitable adoption
CPC 6455
The natural parents transfer custody of their child to a couple/individual who
promises to adopt the child but then fails to complete the proper paperwork to
adopt legally. As applied in this scenario, equity treats the child as a child of the
adoptive parent for purposes of distributing the adoptive parents intestate
property.
Traditional requirements:
o an agreement between the natural parents and the adoptive parents to
adopt the child,
can be oral/implied/in writing
o that the natural parents fully perform by giving up custody of the child,
o that the child fully performs by moving in and living with the adoptive
parents,
o that the adoptive parents partially perform by taking the child in and raising
the child as their own, and
o that the adoptive parents die intestate (a handful of states, however, apply
the doctrine even where the decedent died testate).
Oneal v. Wilkes
Facts: Oneal who had been raised by testator but never formally adopted,
petitioned ct for declaration of equitable adoption
Rule: a K to adopt may not be specifically enforced unless the K was entered
into by a person with the legal authority to consent to the adoption
Reasoning: consent to adoption may only be given by a childs parent or legal
guardian. Ps aunt wasnt her legal guardian; she was only taking over a familial
obligation in caring for the child. b/c page didnt have a legal relationship w/ P
she couldnt consent to her adoption by testator
California: CPC 6455 shows that CA want to benefit the child- the essence of
equitable
CA law holds that equitable adoption is based on K, and the promise or intention to
adopt must be proved by clear and convincing evidence
Child can inherit from but not through the adoptive parent. & adoptive parent cant
inherit from or through the child. Doctrine doesnt affect childs inheritance rights
w/ his natural parents.
25

 In light of the limitations on the parent-child relationship that arises from the
equitable adoption doctrine, one way to think of the doctrine is that it does not
establish a parent-child relationship; rather, it merely provides a cause of action for
the child against the adoptive parent for breach of contract (the promise to adopt),
with damages measured by the intestate share the child would have received if the
parent had adopted the child.

Posthumous Children

Posthumously born child

One conceived while the father is alive but born after fathers death
In this case a presumption arises that the deceased husband is the natural father,
and the child is treated as alive from the moment of conception if it is to the childs
benefit [for inheriting from and through the natural father]
CPC 6407
CA requires conceived before death but born after death

Non-Marital Children

Child born out of wedlock

The inheritance rights of a child born out of wedlock varies depending on whether
the CL is applied or the modern trend
CLAt common law, a child born out of wedlock was considered an illegitimate
child. As such, the child was considered a child of no one. The child could not
inherit from or through either natural parent, and neither natural parent could
inherit from or through the child.
Modern approach repudiates the common law approach. A child has a parentchild relationship with both natural/ genetic parents regardless of their marital
status. UPC 2-117. But a child born out of wedlock is still not treated the same as
a child born to a married couple. Under the modern trend, a child born out of
wedlock automatically has a parent-child relationship with his or her natural
mother (assuming no surrogate mother) and can inherit from and through the
natural mother. Inheritance from and through the natural father, however, typically
requires proof of paternity.
Paternity issues Proving paternity is primarily a family law issue that naturally
overlaps with inheritance rights.
Establishing paternity Jurisdictions vary as to what is necessary to establish
paternity. In most states, paternity can be established in any of the following ways:
o Subsequent marriage between the natural mother and the natural father.
o Acknowledgment of the child by the natural father (typically by taking the
child into his home and holding the child out as his own).
o Adjudication of paternity during the fathers lifetime based on a
preponderance of the evidence.
o Adjudication of paternity after the fathers death based on clear and
convincing evidence. The modern trend is to permit use of DNA evidence
posthumously.
Uniform Parentage Act The Uniform Parentage Act automatically establishes a
parent-child relationship between the child and the natural mother, with the child
being entitled to inherit from and through the natural mother. But the Uniform
Parentage Act requires proof of paternity between a child and natural father before
26

the child is entitled to inherit from and through the natural father. Proving paternity
turns on whether a presumption of paternity arises.
o If a presumption of paternity arises, the child can bring an action to establish
paternity (and inheritance rights) at any time.
o If no presumption of paternity arises, the action to establish paternity must
be brought within three years of the child reaching the age of majority or it is
barred.
o A presumption of paternity arises if the father acknowledges the child by
taking the child into his home while the child is a minor and holding the child
out as his own or if the father acknowledges his paternity in writing and files
the writing with the appropriate administrative agency or court.
UPC/modern trend With respect to a child born out of wedlock, under the
modern trend, a majority of jurisdictions requires the natural parent openly to treat
the child as his or her own and not to refuse to support the child before that parent
or relatives of that parent can inherit from and through the child. The UPC provides
that a parent can inherit from and through the child unless (1) the parents
parental rights were terminated, or (2)( a) the child died before reaching age 18,
and (b) there is clear and convincing evidence that immediately before the childs
death, the parental rights of the parent could have been terminated based on
nonsupport, abandonment, abuse, neglect, or other actions or inactions of the
parent toward the child. UPC 2-114( a).
Construction of wills, trusts, and other written instruments Does a child
born out of wedlock qualify under a written instrument created by someone other
than the natural parent, where the instrument contains a class gift that otherwise
includes the children, issue, descendants, or heirs of the natural parent?
While arguably the question is one of the intent of the party who created the
instrument, in the absence of express language in the document addressing the
issue, the UPC provides that the out-of-wedlock child qualifies as long as the
natural parent functioned as a parent to the child while the child was a minor. UPC
2-705( e) (2008).

New forms of Parentage Advances in Reproductive Technology

Posthumously conceived child

Child conceived and born after the death of decedent
CPC 249.5
Child conceived and born after the death of decedent shall be deemed born in the
lifetime of the decedent and born within lifetime of decedent if child proves by
clear and convincing evidence that ALL of the following are satisfied:
o Decedent in writing specifies that his genetic material shall be used for
posthumous conception subject to
Specification signed and dated
Specification may be revoked or amended by writing, signed and dated
by decedent
A person is designated by decedent to control the use of the genetic
material
o Person designated has given written notice that decedents genetic material
was available for purpose of posthumous conception
Notice given to person who controls distribution of decedents prop w/I
4 months of date of issuance of certificate of decedents death
27

o Child was in eutero w/ decedents genetic material w/I 2 years of the date of
issuance of a certificate of decedents death
Doesnt apply in cases of human cloning
Woodward v. Commissioner of social security
Facts: Woodward sought survivor benefits for her and her children, who were
conceived using her deceased husbands previously preserved semen. He was
undergoing treatment, so they preserved his semen in case he was left sterile. 2
years after his death wife gave birth to twins conceived through artificial
insemination. SSA rejected wifes app for mother/child survivor benefits b/c she
didnt establish that the twins were her husbands
Rule: A child resulting from posthumous reproduction may enjoy the
inheritance rights of issue under the intestacy statute where there is a genetic
relationship between the child and the decedent and the decedent consented to
posthumous conception and to the support of any resulting child.
o Posthumously conceived children may enjoy inheritance rights of issue
under the states intestacy scheme where the surviving parent or childs
legal representative demonstrates (1) a genetic relationship between the
child and the decedent and (2) that the decedent affirmatively consented
to the posthumous conception and to the support of any resulting child.
The court also required that the action to establish paternity inheritance
rights be brought in a timely manner and that notice be given to all
interested parties.
Reasoning: posthumous reproduction may sometimes conflict with the
intestacy law and implicate other interests. The term issue means all genetic
descendants marital and non-marital. The statute requires a child to obtain a
judicial determination that the father is the child for nonmarital children. There
is no reason children conceived after decedents death who are direct
descendants may not enjoy the same succession rights as other children.
Despite the long existence of assistive reproductive technologies, the legislature
has not acted to narrow the broad statutory class of posthumous children to
restrict posthumously conceived children from taking in intestacy. The final
State interest implicated by this certified question is the reproductive rights of
the genetic parent. Individuals have a protected right to control the use of their
gametes. A decedent's silence, or his equivocal indications of a desire to parent
posthumously, ought not to be construed as consent, but rather the prospective
donor parent must clearly and unequivocally consent not only to posthumous
reproduction but also to the support of any resulting child. That a man has
medically preserved his gametes for use by his spouse may indicate only that
he wished to reproduce after some contingency while he was alive, and not that
he consented to the different circumstances of creating a child after his death. A
rule that just required a genetic tie or the election to preserve gametes would
thus be insufficient. In the present case, it is up to the wife (P) to prove that her
husband consented to posthumously conceived children and that he consented
to support such children.
Analysis: ct went through the conflicting state interests in orderly admin of
estates- and did so by establishing a limitations period for the commencement
of paternity claims against the intestate estate and the burdens such limitations
period imposes on the surviving parent or child.
Social Security benefits & state inheritance law
28

USSC rules that posthumously conceived child qualifies for social security benefits
only if under state law the child would inherit from the predeceased parent
Posthumously conceived children in wills and trusts
Whether a posthumously conceived child qualifies as a child/issue/descendant/heir
in a written doc created by someone other than the natural parent is a question of
the intent of the decedent no of intestate rules.
In re Martin B
Facts: grantor established 7 trusts for the benefit of his issue/descendants/ his
son died 6 months earlier, but before death he banked his sperm & authorized
his wife to use it. Using his sperm she gave birth to a son 3 yrs later and 2 years
later to a second son. Trustee petitioned the court to consider whether these
kids were issues and eligible for distributions of the trust.
Rule: When a governing instrument is silent, post-conceived children should be
accorded the same rights as children who are conceived prior to their father's
death.
Reasoning: legislatures and courts try to balance competing interests. On one
hand, certainty and finality are critical to pub interest in the orderly admin of
estates. On the other hand, the human desire to have children, albeit by
technology, deserves respect, as do the rights of the children born as a result of
this science advancement. Even though it cant be said that grantor
contemplated that his descendants would be conceived after sons death, the
absence of specific intent shouldnt preclude a determination that the children
are members of the class of issue. The father certainly thought his kids would
take under the trust, but his intent isnt controlling here. For purposes of
determining the beneficiaries of these trusts, the controlling factor is the
Grantor's intent as gleaned from a reading of the trust agreements. Such
instruments provide that, upon the death of the Grantor's wife, the trust fund
would benefit his sons and their families equally. In view of such an overall
dispositive scheme, a sympathetic reading of these instruments warrants the
conclusion that the Martin B. intended all members of his bloodline to receive
their share.
Surrogacy
Surrogate motherhood arises where a married couple contracts with a woman to
bear a child for them (the child may or may not be the product of the husbands
sperm and/ or the wifes egg) and the woman agrees that the child will be the
couples. Where one or more of the parties change their mind, a number of difficult
legal issues arise. The courts disagree over who qualifies as the childs parents
under these circumstances. Typically resolution of child custody and support issues
has res judicata effect on what constitutes the parent-child relationship for
inheritance purposes. The intended parent under the surrogacy agreement is the
presumed parent, even in the absence of a court order, if the party acted as a
parent w/I 2 years of the childs birth.
Assisted reproduction & same-sex couples
CA court held that a woman who supplies her ova to impregnate her lesbian
partner in order to produce children who would be raised in their joint home is a
mother of the resulting children, as is the partner who gave birth to the children

Advancements
29

Advancements addresses the issue of whether inter vivos gifts a decedent made
to an heir should count against the heirs share of the decedents probate estate
Common Law
If a parent makes an inter vivos gift to a child a rebuttable presumption arises that
the gift constitutes an advancement that counts against the childs share of the
parents intestate estate
Hotchpot all inter vivos gifts to the child are added back [on paper- child isnt
forced to give gift back] into the parents probate intestate estate to create the
hotchpot. Then the hotchpot is divided equally among decedents heirs. Any
advancement given to a child is deducted from that childs share of the hotchpot.
The child only actually receives from the intestate estate only their share of the
hotchpot minus any advancement the child has received.
Rationale Intestate property passes to ones children equally because it is
assumed the parent loved his or her children equally and wanted to treat them
equally upon his or her death. While that assumption is reasonable as applied to a
parents probate property, it is questionable whether it should it be extended to
include inter vivos gifts a parent made to his or her children. The logic underlying
the advancement doctrine is that only by including inter vivos gifts can it be said
that the children were truly treated equally.
CPC 6409
Inter vivos gifts are only considered advancements if one of the following:
o Decedent declares in contemporaneous writing that the gift is an
advancement against the heirs share OR that its value is to be deducted
from the value of the heirs share
o The heir acknowledges in writing that the gift is to be deducted OR is an
advancement OR that its value is to be deducted from the heirs share
Acknowledgment can be @ any time- whereas for donor must be
contemporaneous w/ giving the gift
The prop is to be value as of the time the heir cam into possession or enjoyment of
the prop OR as of the time of death of decedent [whichever occurs first]
o BUT if the value is expressed in the contemporaneous writing of decedent or
acknowledgement the heir made contemporaneously w/ the advancement,
that value is conclusive
If the recipient fails to survive the decedent, the property isnt taken into account
in computing intestate share of recipients issue UNLESS the
declaration/acknowledgment provides otherwise
[not in stat] A donor can provide in his or her will that the inter vivos gift counts
against the donees share, but where the intent is expressed in a will, the
applicable doctrine of satisfaction not advancements
Advancement exceeds share
Child does not have to give any of the gift back to the estate but the child will not
be permitted to share in the distribution of the parents estate

Bars to Succession - Homicide

Situations where an otherwise eligible taker is barred from taking

Homicide
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Where a party who otherwise is entitled to take from a decedent kills the decedent,
the equitable principle that one should not profit from ones own wrongdoing
argues against permitting the killer from taking.
In re Estate of Mahoney
Facts: Wife was convicted of manslaughter in the death of her husband.
Husband died intestate, and the wife claimed her intestate share.
Rule: A conviction of voluntary manslaughter disables the party from taking
under the decedent's will or through intestate succession.
Reasoning: VT doesnt have a homicide stat, yet the ct said that it would be
inequitable to permit the wife to profit from her own wrongdoing and adopted
the constructive trust approach to the issue to ensure that the killer did not
profit from her own wrongdoing
CPC 250
Person who Feloniously & intentionally kills decedent isnt entitled to:
o Property, interest, benefit under a will, trust created by or for benefit of
decedent- or in which decedent has an interest- including general/special
power of appointment conferred by will or trust on killer
o & any nomination of killer as executor, trustee, guardian, or conservator or
custodian made by will or trust
o any property of decedent by intestate succession
Any of decedents quasi community property
In all of these situations the property interest passes as if the killer
predeceased the decedent
Intentional and felonious killing
For the killing to bar the killer from taking from the decedent, the killing must be
intentional and felonious
Manslaughter must distinguish between voluntary and involuntary
manslaughter.
o Voluntary intentional killing and comes w/I the scope of the homicide
doctrine the killer is barred from taking
o Involuntary the unintentional killing and does not come w/I the scope of
homicide doctrine the killer is not barred from taking
Self defense killing in self defense isnt felonious and doesnt trigger the
homicide doctrine
Assisted suicide mercy killings and assisted suicide are technically intentional
and felonious killings and come w/I the scope of the homicide doctrine. There is a
trend to hold mercy killing not as intentional and felonious in the meaning of the
homicide statute.
CPC 254 Judgment of conviction as conclusive; preponderance of the
evidence
Final conviction for felonious and intentional killing is conclusive for the civil law
aspect
In absence of final judgment of conviction of felonious and intentional killing,
the court may determine by a preponderance of the evidence
The BOP is on the party seeking to establish that the killing was felonious and
intentional
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 Burden of Proof Whether a killer takes from his or her victim is a civil issue, not
a criminal issue. A criminal conviction has res judicata effect on the civil issue, but
an acquittal is not the final word because the burden of proof in a criminal case is
proof beyond a reasonable doubt, while the burden of proof in a civil case is merely
preponderance of the evidence. If the defendant is acquitted on homicide charges
but civilly found liable for the decedents intentional and felonious wrongful death,
the killer is barred from participating in the distribution of the victims estate.
Remedy if the doctrine applies, in distributing the victims property, treat the
killer as if he predeceased the victim
Killers issue The general rule is that application of the homicide doctrine
means that the killer is treated as if he or she predeceased the victim. If a relative
predeceases the decedent, and the relative is survived by issue, often the
relatives share passes to his or her issue. With respect to property passing under
intestacy, this occurs pursuant to the per stirpes/ per capita doctrines.
o In CA it depends on whether the victim died testate or intestate
Property covered applies to all types of property in CA, nonprobate, probate
testate, and probate intestate
CPC 251 Joint tenants
o Joint tenants if intentionally an felonious killing of the other joint tenant the
result is severance of the interest of the decedent so the share of decedent
passes as the decedents property and the killer has no right to survivorship
For real and personal property and other forms of co-ownership w/
survivorship incidents
CPC 252 Insurance beneficiaries
o Insurance Ks named beneficiary on an insurance policy/other K
arrangement who intentionally and feloniously kills principal obligee or
person upon who life policy is issued isnt entitled to any benefit it
becomes payable as though the killer has predeceased decedent

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