1. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Legal Terminology Fifth Edition by Gordon W. Brown PowerPoints prepared by Kimberly Lundy

2. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Chapter 25 Disinheritance and Intestacy

3. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Spousal Protection Against Disinheritance oState laws protect surviving spouses from disinheritance. oSurviving spouse may disclaim provisions of will and claim a statutory sum called elective share or forced share. nReferred to as a forced heir.

4. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Spousal Protection – State Provisions oIntestate share – Some states allow disinherited spouse to take amount they would have received if spouse had no will. oWaive spouse’s will – Some states allow surviving spouse to petition to waive spouse’s will. nMust be done within 6 months after will is probated (proved and allowed by court).

5. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Spousal Inheritance on Waiving a Will Typical formula: oDeceased 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. oSurvived by kindred (blood relatives), no issue: $25, 000 outright plus a life estate in one-half of remaining property. oSurvived by no issue or kindred: $25,000 outright plus one-half of remaining property absolutely.

6. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Dower and Curtesy oDeveloped at common law as a way to protect the spouse of one who owned real property. nDower – the right of a widow to a life estate in one-third of real property owned by her husband during coverture (marriage). nCurtesy – 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.

7. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Pretermitted Children oPretermitted children (omitted from a will) receive nothing unless they can show the omission was unintentional. nBurden is on omitted child to show the omission was unintentional. nMust be done through a next friend (another person) because child cannot sue until reaching majority (becoming an adult).

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

9. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Distinctive Relationships Relationships determine inheritance rights: nHalf-blood relatives – one parent in common.  May inherit equally to whole blood; one-half or only if no whole blood. nAdoption – 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).

10. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Distinctive Relationships Relationships and inheritance rights (cont’d): nIllegitimate 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).

11. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Intestacy oIntestacy – dying without a will. nPersonal property passes under law of state of domicile. nReal property passes under law where property is located.

12. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Former Laws of Intestacy oLaws of descent and distribution – former laws of inheritance, distinguished real property from personal property. nReal property descended to eldest son under doctrine of primogeniture.  If parents had no sons, all daughters took property as a single heir (coparceners). nPersonal property was distributed by the church.

13. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Present Laws of Intestacy oPresent laws of intestate succession also distinguish real from personal property. nReal property – ownership is vested (fixed or absolute) in heirs at moment of death. nPersonal property – passes to and is distributed by the administrator.

14. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Intestate Succession Personal & Real Property oAllotted to surviving spouse (if any) first. oBalance to lineal descendants (direct downward line from decedent's children). nNo lineal descendants – balance goes to lineal ascendants (direct upward line). nNo living lineal relatives – balance goes to collateral relatives (siblings, aunts/uncles, cousins, etc.)

15. Brown: Legal Terminology, 5 th ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved. Rights of Surviving Spouse oSurviving spouse is typically entitled to: n1/2 of estate if deceased is survived by issue. nLump sum and 1/2 of remainder if kindred but no issue. nWhole estate if no kindred and no issue. nRights of other heirs, subject to rights of surviving spouse.