ESTATE PLAN BY DEFAULT-THE LAW OF INTESTATE SUCCESSION

1. ESTATE PLAN BY DEFAULT-THE LAW OF INTESTATE SUCCESSION

2. SHARE OF INTESTATE’S SPOUSE • Under the Common Law • Dower • Curtesy • Uniform Probate Code • Iowa Probate Code

3. JANUS V. TARASEWICZ

4. Simultaneous Death • Problem #1, Page 85 • Does the UPC 120 hour rule, solve the problem created by the “no sufficient evidence rule” of the UPC.

5. SHARES OF INTESTATE’S CHILDREN • SHARE OF CHILDREN • Uniform Probate Code • Iowa Code

6. SHARES OF INTESTATE’S MORE REMOTE DESCENDANTS(Grandchildren, great-grandchildren, etc. • CHILDREN vs. ISSUE (Descendants) • Immediate Offspring • More remote descendants • PER CAPITA DISTRIBUTION • PER STIRPES DISTRIBUTION

7. A’s Family Tree A B C D E

8. A’s Growing Family Tree A B C D E gb1 gb2 gb3

9. A’s More Growing Family Tree A B C D E gb1 gb2 gb3 gc

10. A’s More Growing Family Tree A B C D E gb1 gb2 gb3 gc gd1 gd2

11. A’s Whole Family Tree A B C D E gb1 gb2 gb3 gc gd1 gd2 ge

12. A’s Whole Family Tree A gb1 gb2 gb3 gc gd1 gd2 ge

13. A’s Family TreeChildren, Grandchildren and More Remote Descendants All issue survive: B, C and D take 1/3 each

14. A’s Family TreeChildren, Grandchildren and More Remote Descendants B, C and D predecease A In Iowa: E and F take 1/6 G, H and I take 1/9 J and K take 1/6 Under UPC: E through K take 1/7 each

15. A’s Family TreeChildren, Grandchildren and More Remote DescendantsB, C, D, F and J predecease A. Under the UPC: E, G, H, I and K take 1/7 M, N O and P take 1/14 (2/28) In Iowa: E takes 1/6 M, N and O take 1/18 G, H, and I take 1/9 J and K take 1/6

16. A’s Family TreeChildren, Grandchildren and More Remote Descendants B, C, F, G, H, I, J and K predecease A Under the UPC: E takes 1/3 M, N, O and P take 1/6 (2/12) In Iowa: E takes ¼ M, N and O take 1/12 P takes 1/2

17. Negating Inheritance

18. Shares of Intestate’s Ancestors and Collaterals • Civil law consanquinity, page 92 • Parentelic method: • Parents • Their Descendants • Whole Blood • Half Blood

19. HALF-BLOOD INHERITANCE 1/2 1/2 F M SF A I B F and M have Child A and Child I M and F divorce or F dies. Then M marries SF; they have Child B I dies. A takes ½ from F, and ¼ from M B takes ¼ from M

20. Shares of Intestate’s Ancestors and Collaterals • Parents and their issue • Grandparents and their issue • Great-grandparents and their issue (Iowa but not UPC) • Issue of intestate’s deceased spouse • Collateral Relatives • The Iowa Early “Escheat” Rule

21. The Meaning of Children • Adopted Children • Legally Adopted • Equitable (virtual) adoption • Children born out-of-wedlock • Inheritance from mother • Inheritance from father

22. The Meaning of Children • Posthumous Children • Conceived before death • Coitus • Post-death implantation of embryo created before death with decedent’s egg or sperm • Conceived after death • Post-death conception using decedent’s sperm or egg • Post-death implantation of embryo created before death with decedent’s egg or sperm

23. HALL vs. VALLANDINGHAM

24. Adopted Children • Take from adopting parents • Do not take from biological parents • Step-parent adoption exception

25. Step-Parent Adoption Exception Dad Mom Child

26. Step-Parent Adoption Exception Dad Mom Child

27. Step-Parent Adoption Exception Dad Mom Dad #2 Child

28. Step-Parent Adoption Exception Dad Mom Dad #2 Adoption Child

29. Step-Parent Adoption Exception Grandma Dad Mom Dad #2 Adoption Child

30. Adopted Children • For purposes of intestate succession • Under the will of: • The adopter • Third persons • E.g., T wills property to A for life, then to A’s children

31. New Reproductive Technologies • Children born to married persons with use of artificial insemination • Husband as donor • Stranger as donor • Surrogacy • Inheritance from contracting parents • Inheritance from biological parents • Inheritance from birth mother

32. Adopted Adults • For intestacy purposes • Under will of third party

33. O’Neal v. Wilkes • Facts, holding, and critique • Equitable (or virtual) adoption • Requirements • Promise to adopt • Holding out • Inheritance from: • Promisor • Others • “Adopted child”

34. Biological Child (Once known as Child-Born-Out-of-Wedlock or Illegitimate) • Inherit from Mother • And through • Inherit from Father • And through? • Proof issues: • Evidence proving paternity available during father’s lifetime • General and notorious recognition • Recognition in writing • Should there be a distinction? • Would a distinction be constitutional?

35. Posthumous Children • Children conceived before intestate’s death • Children conceived after intestate’s death • Massachusetts and New Jersey cases

36. Hecht vs. Superior Court

37. Advancements • Common law rule • Purpose of rule • Creation of the hodgepot

38. Parent has $450,000 Parent gives $50,000 to Child A Parent dies with $400,000 and three children, A, B and C Court determines transfer to A was an advancement Hodgepot $400,000 (probate estate 50,000 (advancement $450,000 /3== $150,000 From $400,000 Probate Estate: A gets $100,000 and each of B and C gets $150,000

39. Advancements • Problems with the rule • Statutory solutions • UPC • Iowa Code • Problem, page 131

40. Problem 136

41. Bars to Succession • Homicide • Disclaimer

42. Homicide • Should slayer be barred? • If slayer should be barred, • Is slayer deemed to have predeceased victim? • Does slayer hold as constructive trustee? • In Re Estate of Mahoney

43. Homicide • Iowa Code 633.535 (1) • Effects of • Criminal conviction • Criminal acquittal

44. Disclaimer • Common law rules • Intestacy • Wills • Reasons to permit • Tax savings • Defeat creditors claims

45. Disclaimer • Statutory rules • Federal law I.R.C. 2518 • Iowa Code 633.704

46. Problem and Cases • Troy v. Hart • What are the facts of this case? • Was the disclaimer motivated by a desire to “swindle” Medicaid. • Was the disclaimer valid? • Can Medicaid get reimbursed? • Should Medicaid be reimbursed? • Problem, page 150