About 2/3 of the states are separate property jurisdictions. In these states, each spouse owns the property in proportion to their earnings. This is a problem in traditional relationships where one spouse works and one stays at home. But the “spousal shares” or “spousal election” concept remedies this problem. Under this concept, the surviving spouse can usually take about one third of the separate property.
Community Property States
About 1/2 of the states are community property jurisdictions. While alive, each spouse owns an undivided interest in all of the community property (i.e. both have a right to manage it). Upon death of one spouse, ½ of the community property belongs to the surviving spouse and ½ belongs to the decedent. At that point, the decedent is free to give away their half of the community property by will (but during their life they owned an undivided interest in all). See CPC § 100.
Even in a community property state, a person can still hold separate property if it (i) was inherited (but s/he must not commingle), (ii) was given as a gift, (iii) was specifically designated as separate property, or (iv) was acquired before marriage.
Quasi-Community Property
If couple lived and owned property in a separate property state, and they moved to a community property state, the properties in separate property state remains separate. What if the couple lived in Ohio (separate property state) and moves to California (community property state) leaving their properties back in Ohio? Assume husband (H) makes all the money and wife (W) stayed home. H died and W is now in California.
With respect to personal property, California rules of quasi-community property will apply, even though the things are physically in Ohio. With respect to real property, Ohio rules apply under ancillary probate. Real property will be probated in Ohio and under Ohio rules, spousal share concept will protect the wife.
So now we have established that quasi-community property rules applies to personal property, not real estate. California Probate Code § 101 refers to personal property that was earned outside California during marriage and would have been community had it been earned in California. This rule pertains only to married persons and perhaps registered domestic partners domiciled in California. This is property that is legally separate in another state, but is considered quasi-community property in CA. During probate, quasi-community property is treated like community property.
Only for purpose of intestacy, upon death of a married person domiciled in a community state, ½ belongs to surviving spouse and ½ belongs to decedent. What happens to the decedent’s ½? It goes through "intestate succession." Any part of the estate that isn’t validly passed by will is governed by CPC § 6400.
Widow's election
The widow's election arises when the testator attempts to dispose of more than 1/2 of the community property or 1/2 of the quasi community property. In such case, the widow can invoke the widow's election: the widow can "take under the will" (accept the will's terms instead of taking her statutory right to her former spouse's half of the community and quasi-community property) OR the widow can renounce all benefits under the will and confirm her statutory rights to the community and quasi-community property.
So the testator died without a will. Who gets what?
Step 1 is decide how much community/quasi-community property to give the surviving spouse. Step 2 is decide how much separate property to give the surviving spouse. Step 3 is decide what to do with the rest of separate property that isn't given to the surviving spouse (through use a parentalic distribution).
Step 1: how much community/quasi-community property to give the surviving spouse?
Let's assume the wife is the surviving spouse. At the time of her husband's death, community was split. The surviving spouse already has her half of the community and quasi-community property. This has already happened automatically.
What happens to the husband’s half of the community and quasi-community property? If he had will, he could give it away pursuant to his will but if he didn't have a will, then state intestacy law applies and the wife gets his other half of the community and quasi-community property. The result? Wife has 100% of the community property and 100% of quasi-community property.
CEC § 6401(A): “as to community property, the intested share of the spouse is THE ½ of the community property that belongs to decedent under § 100.”
CEC § 6401(B): “as to quasi community property, the intested share of the spouse is THE ½ of the community property that belongs to decedent under § 101.”
Step 2: how much separate property to give the surviving spouse?
This depends on how many children. If husband left more than 1 child, or 1 child and a deceased child with living issue, then, wife gets 1/3 of the separate property. This doesn’t mean the children get anything! This just determines how much of the separtate property to give the wife. If the husband left behind 1 child, or 1 deceased child with living issue, wife gets ½ of the separate property (same result if no children, but had surviving parent). If decedent had no issue, parent, brother, parent or aunts or uncles (no close relatives) then 100% of the separate property goes to the wife.
CEC § 6401(C): “as to separate property, the intestate share of the surviving spouse OR surviving domestic partner … is as follows:
(a) entire intestate estate (100% of the separate property) if the decedent didn’t leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.
(b) one half of the intestate estate (50% of the separate property) if (A) decedent has one living child OR one dead child with living issue or (B) decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them.
(c) one third of the intestate estate (33.33% of the separate property) if (A) decedent leaves more than one child, (B) decedent leaves one child AND the issue of one or more deceased children or (C) decedent leaves issue of two or more deceased children.
Step 3: what to do with the rest of separate property that isn't given to the surviving spouse?
This step concerns people other than the surviving spouse. What do they get under intestate succession? See CPC § 6402. Distribute everything on the first relevant level:
- Decedent’s issue***
- Decedent’s parent(s)**
- Issue of decedent’s parent(s)*** (his bros and sisters)
- Decedent’s grandparent(s)**
- Issue of decedent’s grandparents*** (his aunts/uncles/cousins)
- Issue of decedent’s predeceased spouse*** (his stepchildren)
- Decedent’s "next of kin." See CPC § 6401(f). This is determined by degree of relationship – blood relatives. Must determine who is the closest by looking at degrees of relationships. How close are they related? Determine who is the closet common ancestors. Note parentalic preference: if you had 2 relatives in the 7th degree, they share equally. But if you have 2 in the 7th degree and one is in the 4th parentela and one in the 5th parentala, the one in the 4th parentela gets everything.
- Parents of decedent’s predeceased spouse** (his inlaws!)
- Issue of parents of decedent’s predeceased spouse***
***if all are of same degree of kinship to D, divide equally; if not, apply §240.
Some problems to illustrate how this works:
Example 1: D is survived by spouse S. D has deceased child B, who left 2 living children C and E. D and S has $200,000 in community property. D has $100,000 in separate property.
S gets all $200,000 of the community property. S also gets 50% of the separate property ($50,000). C&E share equally the remaining 50% of the separate property ($25,000 each).Example 2: Now assume D has child G by previous relationship with H (deceased).
Again, S gets all $200,000 of the community property. But because D left one child (G) AND the issue of one or more deceased children, S only gets 1/3 of the separate property ($33,333). G, C, and E share the remaining $66,666 based on kinship. G is 2nd degree kinship and C and E are 2nd degree.Example 3: D leaves S and 2 parents (F & M). No issue. D and S have $50,00 community property and D has a $100,000 inheritance.
S gets all $50,000 of the community property. As to the separate property (the $100,000 inheritance), S gets 50% (or $50,000) because D decedent leaves no issue, but leaves a parent. The other 50% (or $50,000) goes to D’s parents F&M.Example 4: Now assume that D also has 2 nephews B & C from a deceased sister A. Parents have predeceased D.
S gets all $50,000 of the community property. As to the separate property (the $100,000 inheritance), S gets $50,000 (issue of either of them) and B & C split the other $50,000 evenly if equal kinship. Otherwise, apply § 240.Example 5: Now assume sister E is alive and she has one child.
S gets all $50,000 community property. As to the separate property, (the $100,000 inheritance), S gets $50,000. B, C, and E split by degree of kinship. E is 2nd degree kinship while B and C are 3rd degree kinship. Apply § 240.System of Distribution
Per Capita with Representation
Whenever the issue take by intestacy, or if a will or trust provides for issue to take without specifying the manner of taking, then they take according to CEC § 240. Drop to first level where someone is alive, give 1 share to every living person and 1 share to deceased person with living issue.
Classical “per stirpes” or "by right of representation."
This is the least fair method of distribution. Only apply this method of disribution if someone has specified this way. Instead of dropping where someone is alive you divide at next level, even if everyone on that level is dead.
Establishing who is your "issue"?
Sometimes there are disputes as to whether a a person is the decedent's "issue." So what does “issue” mean? Genetically speaking, your issue is your child or grandchildren or great-grandchildren, etc.
Posthumously born children
Sometimes there are posthumously born children (children born after father died). Are they issue of that man? Under common law, the child had to be conceived before man died. In California, there is a rebuttable presumption that if child is born w/in 300 days of death of husband, then it’s treated as issue of that husband. If the child is born more than 300 days can’t take advantage of presumption.
Modern means of technology
These days, it's possible for someone to have children who are conceived after they die. For example, a man could bank semen used later by a woman to create a child. These are recognized as that man’s issue only if: (i) the man authorized the post humous use, (ii) in a signed and witnessed writing, (iii) notice was given to the personal representative (executor) of the decedent’s estate within 4 months of the death certificate, and (iv) the child was conceived in utero within 2 years of the death certificate.
Adoptions
Common law didn’t recognize adoptions, but every state today has statues that allow adopted children to be considered your issue. If someone is adopted then that child is treated as the issue of the person who adopted him or her. Adoption cuts off relationship with the natural parents. They can no longer inherit from their natural parents and the natural parents can no longer inherit from the child.
Exceptions: if the adopting parent is married to one of the child’s natural parents, then in this case, the child is the child of both the adopting parent and the natural parent who the adopting parent married. For example, if the child's natural father died, and the natural mother remarried Bob, and Bob adopts the mother's child, Bob and the natural mother are legally the parents of the children.
Another exception is that if the adoption is by a spouse (like Bob above) of a natural parent as a result of the death of the other natural parent (or divorce) then under some states' laws, adoption does not deprive the child from inheriting from and through the other parent. Bbut not vice versa: the deceased or divorced parent who left cannot inherit through their natural child.
Foster parents
Generally, foster parents must adopt to be treated as that person’s parent. But if it’s established by clear and convincing evidence that the foster child would have been adopted by the foster parent, but was prevented by a legal barrier, that the relationship began during the child's minority, and it continued throughout the parties lifetimes, then the foster parents are considered parents even though never officially adopted the foster child.
Equitable adoption (virtual adoption)
Arises when the parties hold themselves out as parent and child. If (i) there is an agreement (a person who cares for the child must have promised the real parent to adopt the child), (i) the natural parents gave them up (performance by natural parents) and
(iii) the new parents have treated the child as his own (partial performance by foster parents), then the child will be treated as the issue of the person who took care of them. But foster parents can’t inherit through their adopted children.
Adult adoptions
These are generally permissible only if its done to prevent a challenge to a will (deprive someone of standing). It’s not allowed if you want to include someone in a will who was not originally included (you can’t adopt your wife).
Establishing Paternity
If child is born to a married couple and they have a child, there is the presumption that the child is both the child of husband and wife. But what if the couple is unmarried? How to establish a parent child relationship? There may be questions about who is father.
California allows paternity lawsuits to establish paternity. There is a rebuttable presumption of paternity (and the man will be ordered to pay child support) if: (1) the man is named in birth certificate, (2) he holds out the child and being his own child, (3) he and the mother were married before the child was born (even after conception), (4) the man and woman tried to married before the child was born, or (5) the man and woman were married after child was born (or tried to marry).
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