Ch5. Family Law & Succession — Marriage, Inheritance, and Wills

The Structure of Family Law

Family: the network of persons connected by blood, marriage, or adoption and recognized by law as standing in a domestic relationship.

Degrees of Kinship

Under the Uniform Probate Code (UPC) and most US states,
kinship is measured by the "degree" system:
- Lineal descendants (children, grandchildren, etc.)
- Lineal ancestors (parents, grandparents, etc.)
- Collateral relatives (siblings, cousins, etc.)

For most purposes, relationships within the third degree of
consanguinity (blood) or the second degree of affinity
(by marriage) are legally significant.

Consanguinity: connection by blood (lineal or collateral) Affinity: connection by marriage (spouse’s relatives; relatives’ spouses)

Marriage Law

Requirements for a Valid Marriage

Substantive requirements:
① Mutual consent: both parties must freely and voluntarily agree
② Age: at least 18 in most states; parental or court consent
   required for those under 18 (many states have abolished
   exceptions for minors entirely)
③ No prohibited degrees of relationship: marriage between
   close blood relatives is void in all US jurisdictions
④ No prior undissolved marriage (bigamy is prohibited)

Formal requirements:
- Marriage license issued by a county clerk or equivalent authority
- Ceremony performed by an authorized officiant
- Certificate returned and recorded

Common-law marriage: still recognized in approximately 9 states and the District of Columbia. Requires: (1) present agreement to be married, (2) cohabitation, and (3) holding out as married. A valid common-law marriage carries full legal rights, including inheritance and elective share, but not the right to intestate succession in states that do not recognize it.

Divorce

No-fault divorce (majority rule in all 50 states since 1985):
- Either party may petition for divorce on the ground of
  irreconcilable differences (or irretrievable breakdown)
- No showing of fault is required

Fault-based grounds (still recognized in some states):
- Adultery
- Willful desertion for a statutory period
- Physical or mental cruelty, etc.

Procedure: petition → waiting period (varies by state: 0–6 months)
→ court issues a decree of dissolution

Succession Law

Commencement of Succession

Succession commences at death. Under the UPC and virtually all US states, the decedent’s estate vests in the heirs (intestate) or devisees (testate) as of the moment of death — no separate act of acceptance is required.

Intestate Succession Priority (Uniform Probate Code § 2-103)

Priority order:
1st: Descendants (children, grandchildren — per stirpes or per capita
     with representation, depending on state)
2nd: Ancestors (parents) and their descendants (siblings of the
     decedent, if no parent survives)
3rd: Descendants of grandparents (aunts, uncles, first cousins)
4th: Step-children; state escheat if no relatives found

Spouse's share:
- Under the UPC, a surviving spouse takes the entire estate if
  there are no surviving descendants or parents
- If descendants survive, the spouse typically takes a share
  determined by the number and relationship of co-heirs

Representation / per stirpes: if a child of the decedent dies before the decedent, that child’s descendants take the child’s share in equal shares among themselves.

Intestate Shares (UPC § 2-102 and § 2-103)

Surviving spouse's intestate share (UPC default):
- Entire estate, if no surviving descendants or parents
- First $300,000 + 3/4 of the balance, if surviving parents
  but no descendants
- First $225,000 + 1/2 of the balance, if all descendants
  are also descendants of the spouse
- First $150,000 + 1/2 of the balance, if one or more
  descendants are not descendants of the spouse

(Exact amounts are adjusted periodically; many states use
different figures)

Example: surviving spouse + 2 children (all children also
the spouse's children, estate = $500,000 under UPC):
  Spouse: $225,000 + 1/2 × $275,000 = $362,500
  Each child: $137,500 / 2 = $68,750

Disclaimers and Elections

Disclaimer (Renunciation)

An heir or devisee may disclaim (refuse) an inheritance. The disclaimed interest passes as if the disclaimant had predeceased the decedent. A disclaimer must be filed within 9 months of the decedent’s death under the Uniform Disclaimer of Property Interests Act (and for federal tax purposes under IRC § 2518).

Limited / Qualified Acceptance

Not a US concept per se, but the equivalent result is achieved through the insolvent estate / probate administration process:

If the estate’s debts exceed its assets, the personal representative (executor/administrator) pays creditors in the statutory priority order; beneficiaries receive nothing until creditors are satisfied.
Beneficiaries are not personally liable for the decedent’s debts beyond the value of assets they receive.

Insolvent estate distribution order:
1. Costs of administration and final illness expenses
2. Federal and state taxes
3. Secured creditors (up to collateral value)
4. Unsecured creditors (pro rata)
5. Residuary beneficiaries / heirs

→ Heirs receive nothing if liabilities exhaust the estate;
  they bear no personal liability for the deficiency

Disclaimer — Tax Planning Note

A timely disclaimer is treated as if the disclaimant never received the property, which may reduce estate tax exposure in the disclaimant’s own estate. Time limit: 9 months from the date of transfer (date of death or date of gift for lifetime transfers).

Wills

Formal Requirements for a Valid Will (Restatement (Third) of Property: Wills and Other Donative Transfers; UPC § 2-502)

Will execution:
① Holographic will (all states recognize under UPC):
   Entire will handwritten by the testator AND signed
   (no witnesses required under the UPC)

② Attested (formal) will:
   - Signed by the testator (or by another person in the
     testator's presence and at the testator's direction)
   - Witnessed by at least two disinterested witnesses who
     sign within a reasonable time after witnessing the
     testator's signing or acknowledgment
   (UPC § 2-502(a))

③ Self-proved will: a notarial certificate attached to the
   will allows it to be admitted to probate without live
   witness testimony

④ Electronic wills: recognized in several states (e.g.,
   Nevada, Florida, Arizona, Utah) with electronic signature
   and remote online notarization requirements

⑤ Oral (nuncupative) wills: recognized in only a handful
   of states, and only for personal property, in situations
   of imminent death — almost never accepted for real property

Testamentary capacity: the testator must be at least 18 years old (UPC § 2-501) and of sound mind (understand the nature of the act, the nature and extent of the property, the natural objects of the testator’s bounty, and how these elements relate to each other).

The minimum inheritance rights guaranteed to surviving family members, regardless of the will’s terms.

Elective share (surviving spouse):
UPC (2008): the spouse is entitled to 50% of the "marital-
  property portion" of the augmented estate — a share that
  vests incrementally over the first 15 years of marriage
  (UPC § 2-202)
Most non-UPC states: surviving spouse may elect against the
  will and take a fixed fraction (commonly 1/3) of the
  decedent's probate estate

Pretermitted (omitted) children: a child born or adopted
  after the will was executed may claim an intestate share
  unless the omission was intentional (UPC § 2-302)

Elective-share claim period:
- UPC: within 9 months of death or 6 months after probate,
  whichever is later (UPC § 2-211)
- State law varies

Anti-lapse statutes: if a beneficiary who is a descendant of
  the testator predeceases the testator, the gift does not
  lapse but passes to the beneficiary's descendants
  (UPC § 2-605)

Key Concept Cards

Intestate Succession Priority ★★★★★ : Descendants first, then ancestors and collaterals in the order specified by state statute (following the UPC model). The surviving spouse takes an augmented or fixed share. If no relatives exist, the estate escheats to the state. Memory hook: descendants → ancestors → collaterals → spouse’s share → escheat

Disclaimer / Renunciation (9-Month Rule) ★★★★★ : An heir or devisee may disclaim an inheritance within 9 months of death (IRC § 2518; UDPIA). The disclaimed interest passes as if the disclaimant predeceased the decedent. Beneficiaries bear no personal liability for the decedent’s excess debts. Memory hook: disclaim = 9-month window; liability capped at assets received

Elective Share ★★★★☆ : A surviving spouse may override the will and elect to receive a statutory minimum share (UPC: up to 50% of the marital-property portion; most states: ~1/3 of the probate estate). Pretermitted children are entitled to an intestate share. Anti-lapse statutes prevent gifts to deceased descendants from failing. Memory hook: spouse elective share = 1/2 (UPC) or ~1/3 (most states); omitted child = intestate share

Practice Quiz

Q. Decedent Alice is survived by her spouse Bob and their two children Carol and Dan. The estate is $700,000. What is each person’s intestate share under the UPC?

Under UPC § 2-102(1)(ii) (all descendants are also descendants of the spouse): Spouse takes $225,000 + 1/2 of the balance. Balance =$ 475,000; 1/2 = $237,500. Spouse's total =$ 462,500. Remaining = $237,500; each child =$ 118,750.

Q. An heir discovers that the decedent’s debts far exceed the estate’s assets. What steps should the heir take?

File a disclaimer within 9 months of the decedent’s death. Under the Uniform Disclaimer of Property Interests Act and IRC § 2518, a timely disclaimer treats the disclaimant as having predeceased the decedent, so the disclaimed assets pass to the next taker. The heir bears no personal liability for the estate’s debts; only the probate estate assets are available to creditors.

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