Sterk Sp03 T&E Outline - SK

Sterk Sp03 T&E Outline - SK - I INTRODUCTION 1 II...

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1 I. I NTRODUCTION
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2 II. I NTESTATE S UCCESSION A. Introduction 1. Why Have Intestate Succession Laws At All? Without intestate succession young people who do not think to write a will and poor people who either don’t think about writing a will or cannot afford to would be punished. Further, it is important to have general set rules about what should happen in the absence of a will, rather then trying to determine the decedent’s actual wishes, because proof of their wishes could be easily fabricated and there would be extensive and unruly litigation. 2. Goal of Intestate Succession Laws is to Mirror the Decedent’s Presumed Intent 3. Intestate Succession Dictates Who Can Challenge a Will – Someone Who Would Not Take if the Will Was Discarded Cannot Challenge it See Estate of Goick (Page 73), discussed in part II.B.6 below on effect of divorce. 4. Some Generally Accepted Rules of Intestate Succession That Apply in All Jurisdictions (a) Lineal Descendents Take to the Exclusion of Collateral Descendents (b) Only Blood Relatives Take (Not in-laws) With the Exception of Spouses B. Surviving Spouse’s Share 1. The Prevalent Pattern in Wills In most wills, the decedent leaves everything to the spouse if all of the children are common to both spouses; but if the surviving spouse is not the parent of some of the decedent’s children s/he will often leave the spouse less and leave something to the child(ren). 2. The Surviving Spouse’s Share Under the UPC: § 2-102 The intestate share of decedent’s surviving spouse is – (1) The entire estate if: (i) No descendant or parent of the decedent survives the decedent , or (ii) All of the D’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of surviving spouse who survives D . Why? Because we trust the surviving spouse to provide for joint children.
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3 (2) The first [$200,000], plus three-fourths of any balance of the intestate estate, if no descendant of D survives D, but a parent of D survives D. (3) The first [$150,000], plus one-half of any balance of the intestate estate, If all of D’s surviving descendants are also descendants of surviving spouse but the surviving spouse has one or more surviving descendants who are not descendants of D . (4) The first [$100,000], plus one-half of any balance of the intestate estate, If one or more of D’s surviving descendants are not the descendants of the surviving spouse 3. The Spouse’s Share Under NY Law: § 4-1.1 The provisions of NY Law that apply when there is a spouse are 4-1.1 (a)(1) & (2)… (a) If a decedent is survived by: (1) A spouse and issue, fifty thousand dollars and one-half the residue to the spouse, and the balance thereof to the issue by representation.** (2) A spouse and no issue, the whole to the spouse. ** Representation is defined in § 1-2.16 as follows:
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Sterk Sp03 T&E Outline - SK - I INTRODUCTION 1 II...

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