One thing I'm having trouble with, is that the Bar questions and outlines always use "1/3" for the surviving spouse and 2 kids.
But what happens if there's a pill of cash, 1 surviving spouse, and 3 kids from a previous marriage, and no Will? Since there are 4 people, will the cash be split 1/4? Or will the spouse take 1/3 and the kids split the rest?
Is there a good technique for answering intestacy, or is it just a matter of stating the fractions? Most model answers end with a short paragraph on this.
thanks!
Intestate succesion question Forum
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Re: Intestate succesion question
The state's intestacy laws govern here. If you're writing the MEE (and no other specific laws are stated in the question), you're going off the UPC rules. The relevant UPC rules state that if the decedent's survived by descendants (who are not the surviving spouse's) and they didn't have kids together, the surviving spouse takes the first $100,000 of the net estate plus one-half of anything exceeding that amount. Those kids better hope that the pile of cash is well over $100K, or they're basically SOL.Heyall wrote:One thing I'm having trouble with, is that the Bar questions and outlines always use "1/3" for the surviving spouse and 2 kids.
But what happens if there's a pill of cash, 1 surviving spouse, and 3 kids from a previous marriage, and no Will? Since there are 4 people, will the cash be split 1/4? Or will the spouse take 1/3 and the kids split the rest?
Is there a good technique for answering intestacy, or is it just a matter of stating the fractions? Most model answers end with a short paragraph on this.
thanks!
The 1/3 fraction I remember is the elective share she gets if she's forgotten in the will (or if she doesn't like what she gets). Under almost every state's probate laws, a surviving spouse is allowed to nullify what the will says (about her share) and get a third. That however doesn't apply here because there's no will for the wife to contest (your topic's on intestate succession) in this instance.
There's no quick and easy way unfortunately. Just memorize the rules, and definitely state the pertinent fractions. The paragraphs are usually short because intestate statutes basically cover everything and there's no "gray" area for analysis. The rule's either applicable (or not) for the situation.
ALWAYS think about intestacy though, because if there's a less than perfect will (almost always the case), you have to consider it. It also comes up in trusts, and some states have rules where the intestate shares apply. Good luck!
My $.02
