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ESTATES AND TRUSTS-
DAWSON
1) Introduction
a) Should we let people make decisions about what happens to their property after they die?
i) Generally yes, but there are concerns such as concentration of wealth
ii) Freedom of Testation v. Social Control
(1) At some point society will step in and say there are boundaries
b) The Living and the Dead-Whose money is it?
i) Public Policy
(1) See Shapira v. United National Bank (freedom of testation) -will required son to get
married to inherit or money would go to state of Israel. He said this went against his FR to marry and was against public policy.
(a) Not a restriction on marriage a restriction on inheritance and a partial restraint on
marriage is ok. See Maddox where it was unreasonable restraint b/c there were too few marriage choices (too few eligible people in the society) (i) Receiving inheritance is not a fundamental right
1. Both the right to receive property and the right to dispose of property are not
guaranteed by the Constitution-> Legislature is free to abolish the right to receive and/or dispose of property by will.
2. Ex: many states have restricted the right of the testator to dispose of property,
in that they cannot disinherit their spouse.
(b) There is no fundamental right to inherit
(c) It would be a violation of public policy to encourage/reward divorce
(d) Partial restraint if it imposes only reasonable restriction its valid and not contrary to
public policy (i) Simply limiting marriage is generally not an unreasonable restraint
(e) Note: gifts could be given on any condition—the restrictiveness only becomes a
problem when the terms constitute an ongoing unreasonable restraint.
(f) Gifts conditioned upon the beneficiaries marrying within particular religious class or
faith are reasonable
(g) Cant attach a condition to a gift that is in violation of PP
(h) The terms of a will can’t require anyone to do something illegal
(i) Also, in order to be reasonable, the terms in the will have to be very well defined.
You could not tell someone to, "marry a nice girl."
(2) Court in Shapira is essentially giving the testator (T) fairly free reign in deciding on
what basis someone will inherit the property-orientation-freedom of testation.
(a) Effect-father is truly controlling the son-$ is powerful incentive;
ii) Is the right to leave property a FR? arguably no in the 19th/20th^ century BUT…
(1) Hodel v. Irving - SC calls into question if the leg is free to abolish the right to inherit. SC
felt that congress overstepped its bounds and an escheat provision was unconstitutional.
(a) Dawson thinks Hodel means state can’t take property of decedent if there is potential
recipient by will/inheritance. This doesn’t undercut the general rule discussed above.
iii) Dead People Cannot Inherit:
(1) If you’re named in a will, or you’re named as an heir under intestate succession, and you
predecease the person making the will or the “decedent” in intestate succession, you get nothing, and your estate gets nothing.
iv) Slayer’s Rule
(1) states a person will not be permitted to profit by his own fraud, or to take advantage of
his own wrong— (i.e. killing your mother to inherit)
(2) For the slayer rule to be invoked, the killing must have been both felonious and
intentional.
(3) The rule not only applies to the killer but applies to those claiming through or under
him.
(4) NOTE: killer can’t take from the person who is KILLED but not if they kill
someone who would claim as a beneficiary under someone else’s will and that person dies not due to killer Check to see if FL statute says anything about taking as a beneficiary under an insurance policy
(5) See Ford v. Ford case-should you be able to profit from your own wrongdoing
(a) MD rule-no one can profit from his own wrongdoing;
(i) Problem-is there wrongdoing for guilty but insane (culpability) so allowed inheritance (ii) Public policy-let the state step in and stop this v. freedom of testation (iii) An insane person killing decedent does not invoke the slayer statute. In the case, Ford inherits because the court says that Ford wasn’t criminally responsible. Although she was guilty, she was insane. (iv) Insane : lacking substantial capacity to appreciate the criminality of conduct/not criminally responsible for the killing. (v) (^) Possible theory behind reasoning : No deterrence of murder by the insane, so society doesn’t benefit from preventing them from inheriting.
(b) Ford in FL-it is not clear where they would go if the person was guilty but insane, but
some case law supports would come out like MD
(6) FLORIDA: slayer statute 732.
(a) Not limited to felonies statute just says a person who “ unlawfully and intentionally
kills or participates in procuring the death of decedent.”
(b) BUT MUST BE INTENTIONAL ACT
(c) Florida (and no other jurisdiction) addresses the insanity issue
(i) congelton v. Sanson 664 So.2d 276 (1st^ DCA)
1. Treated insanity as the unlawful prong rather than the intentional prong
2. In this case the criminal court said criminal was insane and not responsible so
the probate court said u weren’t insane
3. The court discusses insanity in the context of unlawfulness and not intent
4. The court said in terms of procedure if the person has been found insane in
the criminal proceeding it is up to the other claimants to challenge the insanity and only if they have raised evidence calling the insanity question into issue is the case able to go forward
(d) Killer not entitled to receive property or benefits by reason of victims death
(i) The estate of the decedent passes as if the killer had predeceased the decedent.
(e) Joint Tenancies and TBE
(i) Even if started drafting their wills, but before you were finished they decided to divorce?
(b) L cannot represent b/c doing so violates 4.1-7(a) because H & W are “adverse” when
divorcing.
vi) See Rule 4-1.6: Confidentiality
(1) Can’t disclose info relating to representation with clients informed consent
(2) at the outset advise the clients that information relating to the representation
cannot be kept confidential as between two clients.
(a) If one spouse tells you something, all information must be shared with the other
spouse.
vii) Clients must be told the ground rules from the outset —told of the possibility of conflict and
the confidentially must be sacrificed as between jointly represented spouses.
viii) See Holtz v. Minyard (fiduciary duty issue) -L showed daughter an inoperative will but
that client thought that that was the operative will. Salient fact-father said not to disclose afternoon will (Lawyer is duty bound under 4-1.6). But telling the daughter of the morning will was misleading.
(1) Solution-send the daughter to another lawyer. Court said that the real problem was that
he had continuing FD b/c he representing her in other matters (repped her in tax matters).
(a) Problem-here is the will that your father represented in the morning, but you need to
see another lawyer about the lawsuit b/c I may have a conflict of interest because I represent your father-she doesn’t know what’s wrong, but she knows that something is wrong.
(2) Court was willing to carry relationship over here-but if new client, L still has duty not to
lie-cannot give impression that this is not the last will
ix) Hypo: What do you do if you decide to represent both husband & wife, get written
consent, then one comes to you and says I want to leave property to an illegitimate child and not tell? Do you draft the codicil and do you tell the other?
(1) The Family is the Client (Schaeffer article)-Satisfy the Collective Goal-Dawson doesn’t
like-he sees the family as joint representation
(2) Solution-
(a) Lawyer could have said I can’t tell you about the will and let the daughter infer
something suspicious if he talks to her about an invalid will its misrepresentation
(b) Full disclosure upfront-(BEST METHOD)at the outset, should have made them
say that any info can be shared among spouses. Advise of conflict and say that you cannot hide information from the other party. I will use any and all information to the benefit of both of you.” Now would you still draft codicil? No because you are still doing something adverse to the party-need to get another lawyer to represent you.
(c) Probably just send judy to another lawyer by explaining a COI
(3) Probably best to talk to each of them separately-going in they are individuals.
d) Duty to Third Parties
A. Lawyer’s Malpractice Liability
- 3 Positions for lawyers negligence Liability a. Barcelo (X)- Privity Rule; Broad Lawyer protection, must be in privity with person claiming to be liabile. b. Only when as a direct result of the lawyers negligence the testators intent as expressed in the testamentary documents is frustrated in whole or in part. c. Broad Cause of action by anyone claiming to be a beneficiary
i) Barcelo v. Elliot - CL-no duty to 3rd^ parties only to clients-prevents unlimited liability (privity
barrier)
(1) Exception to privity-should owe a duty to people who are specific, intended beneficiaries;
this TX court reject is, but many jurisdictions allow it (majority rule b/c foreseeable).
ii) FLORIDA COURTS FOLLOW THE RESTRICTIVE VIEW—
(1) Florida Rule : Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (1993)
(2) Want to avoid tort liability to third parties that might create a conflict during estate
planning process
(3) no authority that a disappointed beneficiary may prove, by evidence totally extrinsic to
the will, the testator’s testamentary intent was other than as expressed in his will
(4) If a beneficiary is named in an instrument, but nevertheless with a lawyer’s negligence,
the beneficiary suffers a loss, then the beneficiary can sue. (5) : if document involved names people who are supposed to be beneficiaries but as a result of attys negligence the doc doesn’t operate as plan then those people named in will have standing to bring suit against ht eat (6) FLORIDA provides that if a child is born or adopted after the execution of a will and not provided for in the will or otherwise provided for by a significant inter vivos gift the child is entitled to an intestate share of the estate (a) The assumption is that testator simply forgot to provide for child in the will- law steps in by providing an intestate share of the estate (b) This is the (pretermitted child rule (732.301) (c) This only applies if there is a document forgetting to mention the child in an earlier document (d) BUT WHAT IF A SECOND CODICIL IS EXECUTED After THE BIRTH OF the child (i) This updates the will (ii) Because it has been updated to this point its treated as if it were executed after the birth and not before (iii) Thus the statute that protects child who was born after the execution of the will is no longer operative (iv) Now the will is updated and D attempts to sue arguing that the lawyers execution of the codicil without taking into account its updating effect is malpractice
- FLORIDA court says—no u don’t have standing because u were never mentioned in any of these documents
- FLORIDA RULE: (probably majority rule) we adherer to rule that standing is limited to those who can show that testators intent as expressed in eh will is frustrated by the negligence of the testators atty a. There is nothing in the will speaking of child U need to find that there is some evidence in instruments themselves of an intent to make a gift to sue for negligence
iii) Exceptions
a. A child born after execution of a will may have rights to some of the property. b. But, executing a new instrument updates a will, so there was a case where lawyer executes a tax instrument for a will after a child is born, and it did not name the child. Because the child was not named, the child could not recover.
(i) present intent to transfer a future interest is ok (a present right to future possession). (ii) As long as the evidence establishes intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately.
(b) Deliver :
(i) with real property: usually evidenced by the deed; (ii) with personal property, usually a physical delivery, (iii) but Gruen Ct liberally says there can be 1) actual delivery or 2) symbolic or constructive i.e. giving keys to a car.
(c) Acceptance : acknowledged the gift to his friends and retained it for 17 years.
iii) Gifts Causa Mortis -if someone says they will gift because they will die, but then recover,
they may be able to get their stuff back. There is implicit condition it will revert back to them.
d) Joint Interest With Right of Survivorship (nonprobate transfers)
i) When a JT or TBE dies, the transfer of property that occurs is a nonprobate transfer
ii) The surviving JT takes the property— not as an heir or by the terms of will but by terms of
the instrument that created the JT
iii) JT and TBE are not restricted to real property
(1) Ie—bank accounts
(2) Questions arise about intent of JT—did they understand arrangements they were making
when they signed docs creating JT?
iv) Joint accounts – the intention is that at the time of the account’s opening, the survivorship
interest is created in the other account holder. v)
vi) See Franklin v. Anna National Bank (convenience acct and not joint account) -Decedent
always acted as if own account, so property of the estate (he tried to get her off acct & she never executed control).
(1) Rule: Clear and convincing extrinsic evidence of intent can overcome the plain
meaning of a non-probate instrument.
(a) Different from wills need latent ambiguity before u can bring extrinsic
evidence of intent
(2) The form of the agreement is NOT conclusive regarding the intent of depositors
between themselves
vii) 689.15 -ROS for REAL & PERSONAL PROPERTY held by JTs is abolished. However, there
are exceptions in statute, such as TBE, a TIC that has an instrument specifying ROS.
(1) Unless TBE presumption is a TIC with no rights of survivorship
(a) If instrument specifies ROS then you re ok
(b) In TBE cases property becomes TIC if they divorce
(2) Statute is limited b/c today many JT problems arise w/bank accounts and financial
instruments.
viii) Banks and Banking
(1) 655.78 -the signature card turns out to be the critical piece of paper. If A and B have a
joint checking account, either A or B can order payment up to all of the funds.
(a) This statute is a classic example of what is called a bank protective statute -look
from position of bank-they don’t want to figure out how much each owns-the bank doesn’t have to worry about it & A and B can fight in litigation.
(2) 655.79 - Acct for survivorship -creates a ROS where there are two or more account
holders that open “shall vest in survivor”.
(a) If A and B open checking account and both are named, when B dies, we presume that
A is entitled to the funds in the account-designed to articulate ownership rights
(b) This was the presumption in Franklin. The litigation in Franklin could occur in FL
b/c the presumption is qualified-need proof of fraud, undue influence, or evidence of contrary intent. (i) Remember factual premise that all $ from one person.
(3) 655.80 - this is not a prominent statute but is beneficial to financial institutions.
(a) Convenience account -deposit acct for one individual (principal) and one or more are
designated as agents that can draw from.
(b) All rights to accounts are those of principal only-do not presume right of
survivorship- funds would go to depositor’s estate.
(c) Depositor can change the agent freely (Franklin court had trouble dealing w/this
problem-if he created property interest in first one, he could not switch to another joint person) (i) Dawson LIKES this statute
(d) FL created two possible accounts-(1) for survivorship, (2) for convenience; Dawson
is not sure that the banks actually take advantage of (2)-banks may wait for signal from depositor (e) If the account is a joint account its not property of decedent at moment of death and is not part of the estate (f) Note for TBE relationships may not need a will if you die then it goes to ur other half most likely not anything in the estate to go to the other half because held by TBE but when the second person dies need a will
(4) 655.82-Pay on Death Acct -relatively new statute that creates a 3rd^ kind of bank account-a
‘radical’ idea- POD account has historically been categorized not as an inter vivos but rather testamentary transfer-which created a lot hostility. (i) Key-passes to person, not to estate.
(b) (f)-party defined as having present right-this is the person who opens acct and puts
the money in. There can be more than one party (e).
(c) (b)-beneficiary defined (see form to fill out p.34)
(d) Hypo: H and W open POD account and they have 2 kids A and B who are
beneficiaries; How does this work when H dies? W (other party) has right to funds at this point; When W dies, funds go to A and B
(e) Although devices escape probate, don’t escape taxes
(f) If beneficiary dies b/f party, beneficiary has no rights. If no B’s are alive, then
property goes to estate of last living party.
(g) No limit on amount of money (FDIC insured up to $100K-so keep it smaller)
(h) POD represents significant step forward on non-probate transfers
ix) Joint Accounts During Depositor’s Lifetime -reasons (1) for fear of elderly/incapacitated,
(2) assure account passes to joint account holder w/o need to go through probate, (3) depositor wants to confer on joint account holder all rights associated with joint ownership; Courts traditionally say each party has right only to money he/she deposited (other can have claim if withdraws more)
x) Joint Accounts at Death – Courts generally enforce survivorship provisions of JT accounts
unless (1) the depositor attempted to revoke the provision while alive (as in Franklin), or (2)
- no will at all;
- the will is invalid;
- the will doesn’t dispose of all the property—partially invalid (lawyer shouldn’t allow this to happen) b) IS and wills aren’t mutually exclusive
b) Common problem : the decedent writes a will that says “I don’t want my son X to have any of
my property ( disinheritance by fiat ). This is a problem because under 732.101, X would be entitled to take the property through intestate succession.
i) You cannot prevent an intestate heir from taking your money unless you specify in a
will otherwise.
(1) The decedent could make a will disposing of his property to daughter Y and then the son
X will not get any.
c) ***Remember: While analyzing these, don’t forget about the will substitutes (non-probate
transfers) (i.e.: gifts, joint tenancies, insurance policies, etc.)
i) Those rules prevail over the intestacy statutes
d) 732.101-Intestacy statute -(1) Any part of the estate (NET ESTATE) of a decedent not
effectively disposed of by will passes to the decedent's heirs as prescribed in the following sections of this code. (2) The decedent's death is the event that vests the heirs' right to the decedent's intestate property.
i) FL describes itself as a UPC state, but it is really a hybrid of old and new.
ii) Degrees of kinship (p.67)-don’t have to do this in FL, but may in other states.
e) Theories of Intestate Succession:
i) Intestacy statutes should aim to give effect to the probable intent of the decedent.
ii) Another view is ‘punishing’ people who don’t take time to write wills.
iii) Focus less on decedent’s intent and more on social policy-those who are most
dependant/deserving.
(1) Public Attitudes about Property Distribution Article-community aims are (1) protect
financially dependant family, (2) avoid complicating property titles and excessive subdivision of property, (3) promote and encourage the family, (4) encourage the accumulation of property by individuals.
(a) Preferred distributive pattern of intestate decedents should be given full effect and
should be deviated from only if necessary to satisfy overriding societal interest.
f) Fundamentals of Intestate Succession:
i) Critical issues in examining statutes
(1) The Share of the Surviving Spouse -CL had different rules for real property and
personal property. Surviving spouse was not ‘heir’ for real, rather they had ‘dower’ or ‘curtsey’ rights (lifetime interests in real).
(a) Now, most states apply rules to ‘descent’ of REl prop & “distribution” of personal
property.
(b) Statutory trend has been to treat surviving spouse more generously than at CL.
(i) Statutes assume Ts would want spouses to get bulk (provide 4 kids) For minor children, prevent having to appoint guardian if gave to them.
(2) “Decedents” Take to the Exclusion of “Collaterals”- generally decedent’s direct lineal
descendants take to the exclusion of collateral relatives
(a) 732.103 -Share of other Heirs
(b) Collateral =brothers, sisters, nieces, nephews, cousins, etc NOT DIRECT LINEAL
DESCENDANTS OR ANCESTORS
(c) Issue = more remote lineal descendants including grandkids and great grandkids
(3) Distribution Among Collaterals- if one or more parents still alive, generally take to
exclusion of other relatives; if parents are dead-look at 2 factors :
(a) Who is the common ancestor of the decedent and the collateral relative (parents v.
grandparents)
(b) Also look at “degrees of kinship”-see chart p.67; usually not enough to determine
who inherits under most modern statutes;
(c) CL-closest relatives no matter how far took and then escheat. Today, ‘laughing heir’
statutes-preclude people who are too far away. Worry about heir hunters
(4) Only Blood Relatives (and the Surviving Spouse) Inherit -virtually all intestate
succession statutes exclude relatives by marriage (other than own spouse)-ex: brother in law is not entitled, stepchildren do not take by intestate succession;
(a) 732.102 - Spouse’s Share of Intestate Succession start with this statute and ask is
there a surviving spouse? at CL, the spouse was not an heir and did not take an outright share (not blood relative-but would get dowry)
(5) In IS situations always start with Is there a spouse
(a) Determine how much spouse gets then figure everything else out
g) Hypos:
i) Charles dies intestate with $300K; Leaves wife Candace and sister Debbie; Results?
(1) 732.102(1)-entire estate goes to wife-no surviving descendants, sister nothing.
(a) How would answers changed if survived also by Bea (mother)?
(i) 732.102(1) spouse still receives whole estate-mother is an ancestor.
1. Notion-earliest statutes never passed property to an ancestor-people didn’t
live long & it was inefficient (arose out of feudal system-old people could not provide necessary military service) & primogenitor was important.
a. This system was making estimates about how order/timing of death was
likely to occur & distributed on that basis
ii) Marla dies with $400K survived by husband N and daughter O. How much does
husband get:
(1) Olive is their only child
(a) He would get first $60K plus ½ of $340K (balance) for a total of $230K. The other
half of the balance would go do Olive (732.103)-to lineal descendants of decedent. Use 102 and 103. (i) Why not just give it all to Norman? code seems screwy here-probably trying to protect Olive but she may not need protection. (ii) If for example the estate only has 50k surviving spouse gets everything because nothing left for descedendant (iii) Also only, give a portion to spouse to preserve the notion that children should take from parents if people don’t like it THEN WRITE A WILL!
(2) Marla had a son P from a prior marriage-still have their daughter
(a) 732.102(3) Norman will get half $200K & the remaining $200K goes to the lineal
descendants and is split up (they are both treated equally). (i) P bears no family relationship to N other than stepchild (no inheritance right). Leaving aside P’s real dad, the only inheritance P sees is from Marla. O will not only inherit from M and N. The more N inherits, the less P will see, so we tip scale in favor of P. (ii) Prof—presupposition about the family—Norman may not have a relationship with peter, Norman may not care about olive
(3) Husband has son Q from prior marriage-still have their daughter
(a) 732.102(2) comes out in the same way as (1)-we simply disregard Q
(ii) Look at A’s line. The $30K will be distributed $10K to E, $10K to F, and $10K to G’s line. Then N and O will each get $5K respectively. (iii) H will take $30K-P gets nothing (living ancestor blocks). I J and K each get $10K. Q an U each get $15K.
(c) Term “Represent”- in FL statute per stripes takes over word representation. In UPC
the word represent is used directly-the major difference is where you make the first division. Under many codes, if you have a generation entirely gone, you disregard it. We would initially divide by 8ths for the grandchildren ($15K for each line)
(2) Situation 2: A, E, F, and G have died before X
(a) B gets $30K, C gets $30K, D gets $30K
(b) M gets $15K; N and O gets $7.5K each, but F doesn’t have descendants do divide by
2 for E/G lines; (i) Note-each time you have a share that cannot be distributed b/c dead, do same calculation (ii) Under modern method, don’t have problem of missing generation for A’s group. But modern would disregard EFG and split among grandchildren evenly $10K/each. (iii) Under FL, why doesn’t F count as a deviser-no descendants so no where to go.
(3) Situation 3: A, B, C, G and H die before X
D gets $30,
E and F get $10,000 and N and O each get $5,
P gets $30,000 two ancestors are dead but P can take by rep to them
I, J and K each get $10,
(4) Situation 4: A, B, C, D, F, H, and P all die before X.
Strict Per Stripes
E and G each get $20,000.
I, J and K get $13,
L gets $40,
vi) If there are no descendents of decedent then under 732.103(2) when statute says equally it
just means equally BUT NOT BY JT because they might be divorced
vii) When statute says survivor of them doesn’t create JT by right of survivorship just means if
one is living at time of decedents death then that means that that person takes it all
(1) What if kid is under 18 and dies without marriage and no descendents then that’s a
situation where it would go to parents i)
j) The Share of Ancestors and Collateral Heirs
i) 732.103 Priority System if anybody in the family fits a higher priority, they take
everything.
(1) 732.103(1) is easy; (2)-father and mother can inherit if no spouse and no lineal
descendants; (3) goes to brothers sisters if no spouse, descendants, or father/mother.
(2) The decedent’s parentella are the lineal descendants.
(3) If no parentella, we go up one parentella to the parents of the decedents.
(4) If we move to the other kids of the parents (siblings), we move to the second paretella.
(5) Finally if none of the people listed above, we go up another level to different parentella
(2 family lines of decedents grandparents divide property in half to each line and then pass that property down their line if not alive-to the uncles and aunts and their descedents-3rd^ parentela)
(6) The FL system goes out as far as grandparent’s parentella but no farther-cuts off laughing
heirs.
ii) Hypo: X dies unmarried, childless, intestate w/$100K
A-B
C D X E
F G H I J K
(1) Underlined individuals died before X. How to distribute X’s estate?
(a) If A and B were alive (parents), A gets 50, B gets 50 (732.103(2))
(i) Historically would not allow property to pass up but common now (maybe young no will) (ii) A and B do not get a JT w/survivorship-what if they are divorced-bad idea;
(b) If A and B are dead and C and E also dead to brothers and sisters and their
descendants (3) (i) How do we divide- 732.104 when we see word descent in 104, this is not X’s descendants, but rather descendants of other people.
1. Brothers, Sisters, Aunts, Uncles are collaterals (related by blood not
descendent of decedent)
2. We divide first the generational level nearest to the head of the parentella-
here that is A and B and the nearest generation to them are the brothers and sisters.
a. We divide alive plus a placeholder for dead w/living descendants.
(ii) Thus, C, D, and E all count-$100K estate; C=33K and F and G get 17K each; D gets his 33K; and E’s line each get $11K; Pure per stirpes.
(c) 103(4)(c)- if there is no one in the family on the fathers side, then it would all go to
the mother’s side (A and B)-rather than being half of X’s property.
(d) 103(5)- if there is no kindred of either side-decedent is unadopted orphan loner. If at
one point X was married and spouse has died, then it would go to those family members. (i) what this section does is take X’s property, give it to dead spouse’s fam by means of a fiction and assume that that spouse died immediately after X and assume that the spouse had no will and then we will use that spouse to determine where property goes-the spouse in short becomes the decedent;
1. Extreme measure to avoid escheat
iii) Hypo:
A-R F-Q
B C D--------------------------E P
M K X H
N O L I J
(1) How would X’s estate be distributed?
(a) Look for surviving spouse (nope), then lineal descendents (nope), then X’s parents (D
and E-but they are both dead). (i) The parents had 2 children (X and H-their descendents-H is dead, but left descendent J) (ii) J will take the entire estate. If H had survived X as well, H would have got it all
(2) Now assume J also died before X.
(b) Assume X leaves will and says I give $50K to children of A. Is A’s adopted child
entitled? Answer is if child can take from A, then entitled to X’s gift. (i) Note-T is not bound by 608 and could exclude b/c merely rule of construction.
iii) Hypo:
W H --------- X
A B C D
E FG
(1) H and W have three kids ABC
(2) W dies and H marries B
(3) B dies leaving behind Cs child E and D’s two kids G and F
(4) A dies leaving will for 50k property property to B
(5) E F G are potential claimants
(a) E claiming through C is a whole blood collateral (C is a whole blood sibling of B
(b) D half-blood relative of B
(i) So Ds kids are half blood as well
(c) How do u distribute property?
(i) C gets 2x (whole blood) as much as D a half blood (ii) Since C can’t go to C since C is dead goes to E by rep (iii) FG and take per stirpes by repping D
(6) It’s the initial division that D is a half blood to C that drives distribution of property
(7) If A had been alive and B died with 100k
(8) Then both C and A are going to take 2x as much as D
iv) Hypo:
X----------M↔N
P O Q
(1) O dies w/ $100K. M and N are dead, no surviving spouse or descendents. Where does
the $100K go? M and N left lineal descendents.
(a) 732.103 (3) Q is a brother of O and P is half brother of O
(b) 732.105 half blood statute; those of the half-blood shall inherit ½ as much as those
of the whole blood. So Q gets twice as much as P. (i) Q=$67K and P=$33K; (3 shares)
(2) Now assume O was only child and on both sides P and Q are half bloods.
(a) 732.105 finishes w/but if all are half blood, they shall have whole parts; don’t try to
create half shares so P and Q get equal shares-here $50K each.
(3) Note-you can only have half bloods in collaterals-you cannot have half blood
descendent or ancestor-you either are or are not.
v) Adoption
(1) Tricky b/c courts saw person as not related by blood (but can adopt family) and there are
many neglected nuances (custody, living arrangements) that the statutes don’t acct for.
(2) 732.108 represents response to historical notion-(1) generally transplants child from
natural family into the adopted family and fits in as ‘natural kindred of all members of adoptive parents family’-can inherit from everyone.
(a) This is good model for kid that came from adoption agency, but exceptions
(i) (1)(a) stepparent adoption has no effect on relationships (still has 1 natural). Don’t want to possibly take away parental rights of other natural parents.
(ii) 1(b) no effect on relationship btwn child and family of deceased natural parent (i.e. child adopted by natural parent’s spouse who married after death of other natural parent)
1. This allows possible inheritance from 3 lines of people. Why? implicitly
compensating for loss of natural parent, but the main reason is that we are not going to make any assumptions about failure of relationship w/dead parent’s family; also parents of dead parent want to preserve relationship w/adopted kid.
2. Dawson thinks classic example of tailoring statute for more narrow situations
that doesn’t work very well. No way to tailor result to actual family relationship. (iii) 1(c) adoption by close relative (defined as brother, sister, grandparent, aunt, or uncle) has no effect on relationship btwn child and families of deceased natural parents.
1. Adoption Statute 63.172(2)-doesn’t require that both parents die. Leg
probably had in mind situation where both parents are dead (like disaster).
2. Ex: F and M have two kids X and Y. F/M both die. Suppose Y adopts X. X
now becomes lineal descendant of Y. Later on if GPs die. Y would take property to exclusion of X under adoption rules. But under the exception, adoption has no effect on relationship btwn X and FM. Thus, X and Y would take as siblings.
(3) Hypo:
D S X (new hubby) A
1. The only way X can adopt A is if D dies, consents, or his parental rights have
been eliminated by some wrongdoing.
2. Let us assume D consents to the adoption of A and X adopts A. A can
inherit from X and X can inherit from A. A’s rights to D (and D’s family) have been cutoff. A continues to have inheritance rights of S. ( 732.108(a )).
3. Let’s assume D dies and X adopts A. A can still inherit from D (because he
has died before the adoption) and his family because of 732.108(b). A has inheritance rights from 3 family lines rather than 2. (D’s, S’s and X’s) ( tearjerker exception )
The marriage of the second spouse has to be AFTER the death of D.
o If S and D divorce and S marries X and then D later dies.
o After D dies X adopts A. A will not be able to take from D’s family because the
statute clearly says “adoption of a child by a natural parent’s spouse who married the natural parent AFTER the death of the other natural parent.” The order of death makes a difference.
(4) Estate of Donnelly illustrates a failure of legislature to take into account step-parent
adoption
(5) Estate of Britin found that natural children of adult adoptee are descendents and can take
as grandchildren of the adoptor.
(a) If adoptive parent adopts a ‘child’—even an adult child-the ‘child’ may become
eligible to take under the terms of the will or the trust instrument;
(b) Also, an adult adoption may limit standing to challenge the adoptive parent’s will
(6) Equitable Adoption if no formal steps to adopt theory of ‘equitable adoption’ may be
invoked to permit inheritance. Can be based on implied agreement. PROMISE is big.
Y A------------B X
C
(a) If A and B die and X adopts C what effect will this have? For instance if G3 and G
die, where will X’s inheritance go? C will be able to inherit by representation through B even if X adopts C. (pursuant to 732.108(2 ) and 63.172) For purposes of inheritance C can inherit from X, but with regards to anyone else in the family who dies, C will inherit as a representative for B.
(b) Assume A has child O. A’s partner was X (out of picture). A now has another partner
B (not married). B decides to seek to adopt O. Can he adopt O in FL? If so, what is the impact on O’s inheritance rights?
o Yes, B can adopt O. 63.172 -would allow an adoption by B as an individual; however
62.172(b) terminates all legal relations between natural relatives including birthparents except if married to petitioner;
o 732.108(1)(a)- stepparent exception; but here in this case, they are unmarried;
o Thus, exception does not apply, so A’s relationship terminates if adoption occurs. So
A and B need to get married, and then adopt if they both want to be the parents.
(9) G1 G2 G3 G4 G5 G6 G7 G
A------------B D-----E
C C
o C is ultimately adopted by D and E
o Unless A and B consent or the paternal rights of A and B are terminated D and E
can’t force an adoption
o If D and E adopt from whom does C inherit?
The basic rule in 732.108(1) The adopted person is the descendant of
the adopting parent and one of the natural kindred of adopting parents family and is not a descendent a descendant of the natural parent or any of that parents family
When adoption occurs C has moved from family of A and B to family
of D and E
And for inheritance purposes all ties to A and B’s family are gone
If A and B are dead before the adoption C will likely inherit from them
before the adoption
m) Simultaneous Death-732.
i) Young couples worry about it b/c of young children. Wealth is likely to come from insurance
policies.
ii) Intestate succession statutes operate on the assumption that decedent would have wanted her
closest living relatives to share in the estate.
iii) Hypo: R ($100K) and N ($200K) died in accident (R killed instantly N died in
ambulance); 2nd^ marriage for R (who has 4 children) and N also has 4 children.
(1) If N survives, R is the only estate to distribute-has $100K, so under FL, N would get
$50K and his descendants get the other $50K split evenly.
(2) Problem for us-is N a surviving spouse? Is it a matter of living an instant longer or do
you need to be alive longer (like when probate begins)
(a) FL-it means you survive or live at least an instant longer; underlying premise-death
of decedent vest interest of survivors
(b) N is now dead, but her representative could say that N survived R for very short time
and then she takes ½. (i) b/c N is dead, the $50K becomes part of her estate, and then her kids equally take the $250K-$62.5K each (ii) R’s property ended up in hands of N’s kids, rather than his-seems unfair.
(3) Now, assume N and R killed in plane crash. If N representative needs to demonstrate N
survived R, much less evidence to demonstrate this. If you don’t have evidence, then cannot demonstrate that you were alive, so at that point, there would be no surviving spouse.
(a) R’s $100K would be divided btwn his kids and N would get nothing.
(4) How does FL solve the unfair crossover problem?
(a) 732.601(1) if insufficient evidence that they have died otherwise than
simultaneously (like airplane case), dispose of as if that person survived (legal fiction) (i) Would not change outcome of car problem (clear evidence), but will change airplane (ii) Airplane case-R’s property would go to his estate and N’s property would go to hers - No Cross Over (only if not common kids) & Double Administration (bigger issue)
1. Dispose of R’s as if R survived (then we imply N didn’t-so no claim), so R’s
100 will all go to his kids
2. Do the same thing for N and her kids split the $250;
(iii) Very rare for simultaneous death to occur (iv) “as if each person survived” The negative of this if we dispose of A’s property as if A survived saying that N didn’t so N isn’t a surviving spouse and has no claim so all the property goes to A’s family (v) Cross over effect and inequality effect won’t occur in this situation but this situation is VERY rare so the statute most likely won’t apply
(5) In FL, people would have to die in common disaster, but in UPC, could imagine that one
dies in auto accident and few days later another dies of cancer-more realistic (120 hr rule)
(a) 732.608-you can change survivorship in a will. The statute says unless in will-this
applies;
(6) 732.601 extends beyond the probate code who takes the home will depend on order of
death (TBE), beneficiary of insurance policy has to be alive, overall order of death is critical.
(a) (3) and (4) deal specifically with the issues stated above;
(i) Assume home as TBE. Die simultaneously; if equity is $100K-$50 to each estate; (ii) If one has policy naming other as beneficiary, it will be distributed through the insured’s estate
n) Disclaimer
o) Dawson didn’t give us these statutes:
i) 739.103 this chapter applies to disclaimers of any interest in or power over property
whenever created scope of statute indicates the potential breadth
ii) 739.104->> person can disclaim in whole or in part conditionally or unconditionally any
interest or property
