DESCENT AND DISTRIBUTION

DESCENT AND DISTRIBUTION

The area of law that pertains to the transfer of real
property or PERSONAL PROPERTY of a decedent
who failed to leave a will or make a valid will and
the rights and liabilities of heirs, next of kin, and
distributees who are entitled to a share of the
property.

Origin of the Law
The passage of property from ancestors to
children has been recognized and enforced
since biblical times. As a general rule, the law,
and not the deceased person, confers the right
of succession—the passing of title to a dece-
dent’s property—and determines who shall take
intestate property. In the United States, such law
is derived from the CIVIL LAW and English
statutes of distributions, rather than from the
COMMON LAW, which preferred the eldest male,
under the doctrine of primogeniture, and males
over females. Statutes in every state prescribe the
order in which persons succeed to a decedent’s
property if he or she dies intestate, which means
without a lawfully executed will. These statutes
provide for an orderly administration by identi-
fying successors to a decedent’s, also called an
intestate’s, estate. They seek to implement the
distribution that most intestates would have
provided had they made wills, on the theory that
most persons prefer that their property pass to
their nearest relatives rather than to more
remote ones. An order of preference among cer-
tain relatives of the deceased is established by
the statute. If there are no relatives who can
inherit the property, the estate escheats, or
reverts, to the state.

Persons Entitled
The terms heirs, next of kin, and distributees
usually refer to the persons who by operation
of law—the application of the established rules of
law—inherit or succeed to the property of a per-
son intestate on his or her death. Statutes gener-
ally confer rights of inheritance only on blood
relatives, adopted children, adoptive parents,
and the surviving spouse. Line of descent is the
order or series of persons who have descended
one from the other or all from a common ances-
tor, placed in a line in the order of their birth
showing the connection of all blood relatives.
The direct line of descent involves persons who
are directly descended from the same ancestor,
such as father and son, or grandfather and
grandson. Whether an adopted child can be
regarded as in the direct line of descent depends
upon the law in the particular jurisdiction. The
collateral line of descent involves persons who
are descended from a common ancestor, such as
brothers who share the same father or cousins
who have the same grandfather. Title by descent
differs from title by purchase because descent
involves the operation of law, while purchase
involves the act or agreement of the parties.
Usually direct descendants have first preference
in the order of succession, followed by ascen-
dants (persons in the collateral line of ascent),
and finally, collateral heirs. Each generation is
called a degree in determining the consanguin-
ity, or blood relationship, of one or more per-
sons to an intestate.Where the next of kin of the
intestate who are entitled to share in the estate
are in equal degree to the deceased, such as chil-
dren, they share equally in the estate. For exam-
ple, consider a mother who has two daughters,
her only living relations, and dies intestate, leav-
ing an estate of $100,000. Since the two daugh-
ters occupy the same proximity of blood
relationship to their mother, they share her
estate equally, each inheriting $50,000.
Issue has been defined as all persons in the
line of descent without regard to the degree of
nearness or remoteness from the original
source.

Law Governing
If at the time of death, the intestate’s estate is
located in the state of his or her domicile or per-
manent residence, the law of that state will gov-
ern its descent and distribution. Local laws that
govern the area where the property is located
generally determine the descent of real property,
such as land, houses, and farms, regardless of the
domicile of the deceased owner. The succession
to and the disposition and distribution of per-
sonal or movable property, wherever situated,
are governed by the law of the domicile of the
owner or intestate at the time of death, unless a
statute in the state where the property is located
provides otherwise.

Since the privilege of receiving property by
inheritance is not a natural right but a creation
of law, the legislature of a state has plenary
power, or complete authority, over the descent
and distribution of property within the borders
of the state subject to restrictions found in con-
stitutions and treaties. The disposition of the
property of an intestate is governed by the
statutes in force at the time of death.

Property Subject to Descent and Distribution
As a general rule, property subject to descent and distribution includes all vested rights and interests owned by the deceased at the time of death. However, rights or interests that are personal
to the deceased, and not of an inheritable
nature, ordinarily are not subject to descent and
distribution. Examples are a personal right to
use land or a statutory right to contest a will.
If a seller dies prior to the completion of the
sale of real property, the legal title to land that
the seller contracted to sell vests in the heirs at
law on the owner’s death, subject to their obligation
to convey the land to the purchaser according
to the contract. A few states authorize the
distribution of property among different persons
according to whether it is real or personal,
but this is not the general rule.
Representation, Per Stirpes, Per Capita
Representation is the principle of law by
which the children, or their descendants, of an
heir to an estate, who dies without leaving a will,
have a collective interest in the intestate’s share
of the property. Taking by representation means
taking per stirpes. For example, Robert, who
only has two daughters, Ellen and Pam, dies
intestate, leaving an estate of $200,000 after the
payment of debts and charges. Under a typical
statute, Robert’s daughters are his distributees,
each receiving $100,000. However, Ellen predeceases
her father and leaves two sons, David and
George. Since Ellen is not alive to take her share,
there would be a per stirpes division of Robert’s
estate, which means that Ellen’s share of
$100,000 would be divided equally between
David and George, and each would receive
$50,000. Pam’s $100,000 share of her father’s
estate remains unaffected. Since they are brothers,
the degree of blood relationship between
David and George is equal; therefore, they take
per capita, or equal, parts of Ellen’s share. However,
they have taken per stirpes shares of
Robert’s estate. Assume that George also died
before his grandfather and left two daughters,
Ruth and Janet, but his brother David was still
alive. David would take $50,000, but Ruth and
Janet would have $25,000 apiece. Pam, who is
still alive, would still be entitled to $100,000, her
share of Robert’s estate. The degrees of consanguinity
among David and Ruth and Janet are
unequal, since David is Robert’s grandchild,
while Ruth and Janet are his great-grandchildren.
David and Ruth and Janet share Ellen’s
portion of Robert’s estate per stirpes. David
takes 50 percent, or $50,000, whereas Ruth and
Janet each take 25 percent, or $25,000, because
of the unequal degrees of blood relationship to
Ellen. David is one generation removed from
Ellen, while Ruth and Janet are two generations
removed from her.
Kindred of the Half Blood
The term kindred of the half blood refers to
persons who share a half blood relationship with
the intestate because they have only one parent
in common with each other. As a general rule,
kindred of the half blood inherit equally with
kindred of the whole blood who have the same
parents, unless expressly prohibited by statute.
For example, A and B shared the same father
with C and D but had a different mother. If A
dies, leaving no surviving spouse, children, or
parents, C and D share equally with B in A’s
estate, even though C and D were of the half
blood in relation to A, since they had only one
parent in common. C and D inherit as if they
had both the same parents as A and B.
Necessary or Forced Heirs
The law of forced heirship gave certain relatives,
besides the spouse, an absolute legal right,
of which they could not be deprived by will or
gift, to inherit a certain portion of the decedent’s
estate. Ordinarily, a person has no right to prevent
another from disposing of his or her property
by gift or will to someone else. The law of
forced heirship in effect in only Louisiana limits
the disposition of a decedent’s property if his or
her parents or legitimate children or their
descendants are alive at his or her death. Such
persons are expressly declared by law to be
forced heirs, and a decedent cannot deprive them of the portion of an estate reserved to
them by law unless there is JUST CAUSE to disinherit
them. Anyone else who received the property
can be legally obligated to return it or to
make up the portion of which the forced heirs
have been deprived out of his or her own property.
Designated Heirs
In some jurisdictions, statutes permit a person,
the designator, to name another to stand in
his or her place as an heir at law in the event of
his or her death. Anyone can be a designated
heir, even a stranger to the designator. The
statute does not grant a designated heir any status
until the designation becomes effective on
the death of the designator. The designator can
revoke the designation until the time of his or
her death and then designate another. After the
death of the designator, a designated heir has the
status of an heir at law, and under the statute,
the status of a legitimate child of the designator.
For example, H designates his wife W as his heir
at law. H and W are childless. H is the only child
of F. F dies intestate after H’s death. The applicable
statute of descent and distribution gives all
of F’s property to his lineal descendants. W will
inherit all of F’s property since she was H’s designated
heir at law and is, for inheritance purposes,
considered a child of H. She is, therefore,
a lineal descendant of F. If the designated heir
dies before the designator, his or her heirs generally
will not have a right of inheritance in the
designator’s intestate estate.
Descendants
Subject to the rights of the surviving spouse,
children have superior inheritance rights compared
to those of other blood relatives. In many
jurisdictions, the same principle applies to
adopted children of the intestate. Once the debts
of the estate have been paid and the surviving
spouse has taken his or her legal share, the
remainder of the estate is apportioned in equal
distributive shares, the portions specified by the
law of descent and distribution, among the
number of children of the decedent. The rights
of the decedent’s child or children are greater
than not only those of the deceased’s brothers
and sisters, nephews and nieces, and other collateral
kindred but also of the deceased’s parents.
Posthumous Children A posthumous child
is one born after the death of its father or
mother (as, for example, by Caesarean section).
Both at common law and under various state
statutes, a posthumous child takes as an heir and
a distributee as long as it is born alive after a
period of fetal existence that indicates that it was
conceived before the death of the intestate
father, usually a period of nine months. Some
statutes require that a child be born within ten
months after the death of the intestate in order
to be regarded as a posthumous child. The technique
of ARTIFICIAL INSEMINATION, through
which a woman can be impregnated with frozen
sperm months or even years after the death of
the father, poses problems for courts interpreting
posthumous child statutes.
Children of Successive Marriages On the
death of an intestate who had children by different
marriages, all of his or her children take
equal shares of the estate once the estate debts
have been paid off and the surviving spouse has
taken the legal portion. This method of distribution
applies unless barred by statute, such as
in cases where the property of an intestate was
received from a deceased spouse of a former
marriage. In that instance, only children of that
particular marriage would inherit that property
to the exclusion of children of other marriages.
In a few states, a slightly different distribution is
made of COMMUNITY PROPERTY of the first
marriage—one half of that property belonging
to the deceased spouse going to the children of
that marriage in equal shares, and those children
together with the children of the second marriage
dividing equally the other half, subject to
any rights of the surviving spouse.
Issues of Children who Predecease Intestate
The share that a child who dies before the intestate
would have inherited if he or she had survived
the intestate parent is inherited by his or
her children or descendants by the right of representation
in per stirpes shares. Grandchildren
have better inheritance rights than brothers and
sisters of the intestate and their children. However,
they do not inherit unless their parent, the
child of the intestate, is dead.
Illegitimate Children At common law, an
illegitimate child was a filius nullius (Latin for
“child of no one”) and had no right to inherit.
Only legitimate children and issue could inherit
an estate upon the death of an intestate parent.
This is no longer the case as a result of statutes
that vary from state to state. As a general rule, an
illegitimate child is treated as the child of the
mother and can inherit from her and her relatives
and they from the child. In some jurisdictions, the illegitimate child is usually not
regarded as a child of the father unless legitimated
by the subsequent marriage of the parents
or acknowledged by the father as his child,
such as in affiliation proceedings. A legitimated
child has the same inheritance rights as any
other child of the parent.Many statutes permit a
child to inherit from his or her father if the
PATERNITY is judicially established before the
father’s death. In the case of Trimble v. Gordon,
430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31
(1977), the SUPREME COURT OF THE UNITED
STATES decided that it is unconstitutional for
states to deprive an illegitimate child of the right
to inherit from his or her father when he dies
without leaving a will, especially in cases where
paternity is already established in state court
proceedings prior to the father’s death.
Parents
Some statutes permit one or both parents of
the intestate to inherit, to some extent, the property
of a child leaving no issue or descendants
subject to the rights of a surviving spouse. Provisions
differ as to whether one or both parents
take, whether they take exclusively or share with
brothers and sisters, and as to the extent of the
share taken. Frequently, if one parent is dead, the
surviving parent takes the entire estate, both real
and personal, of a deceased child who dies without
issue. Some statutes provide that a surviving
parent shares with the brothers and sisters.
Stepchildren, Stepparents
Ordinarily, a stepparent does not inherit
from the estate of a deceased stepchild. Similarly,
stepchildren do not inherit from their stepparent
unless the terms of a statute grant them
this right.
Brothers, Sisters, and
Their Descendants
Brothers and Sisters If an intestate dies
without a surviving spouse, issue, or parents, the
decedent’s brothers and sisters and the children
of deceased brothers and sisters will inherit the
estate. Brothers and sisters inherit when and
only when there are no other surviving persons
having priority by virtue of statute. Their inheritance
rights are subordinate to children and
grandchildren and the parents of the intestate in
a number of jurisdictions.
Nephews and Nieces Nephews and nieces
usually inherit only if their parent is deceased
and would have inherited if he or she had survived
the intestate.
Grandparents and Remote Ascendants
Generally, where paternal and maternal
grandparents are next of kin to the decedent,
they share equally in the estate of an intestate.
Some statutes provide that where the estate
descended to the intestate from his or her father,
it will go to a paternal grandparent to the exclusion
of a maternal grandparent. State statutes
vary as to whether the grandparents all inherit,
or where there are surviving aunts and uncles, as
to whether they are excluded by the grandparents.
There is a similar division of authority as to
whether great-grandparents share with surviving
great-uncles and great-aunts.
Remote Collaterals
A collateral heir is one who is not of the
direct line of the deceased but comes from a collateral
line, such as a brother, a sister, an uncle,
an aunt, a nephew, a niece, or a cousin of the
deceased. People are related collaterally when
they have a common ancestor, such as a parent
or grandparent.Where the property in question
is within a statute directing the course of descent
of property that came to the intestate by gift,
devise, or descent from an ancestor, as long as
they are the nearest heirs, the remote collateral
heirs (for example, cousins) who share that
common ancestor are entitled to inherit to the
exclusion of collateral heirs who do not.
Operation and Effect of a Will
Rights under intestacy laws are only taken
away by a properly executed will disposing of the
testator’s entire property. These laws can, however,
operate in case of partial intestacy where
part of the decedent’s property is not disposed
of by will.
Surviving Spouse
The right of a surviving spouse to share in
the estate of a deceased spouse arises automatically
from the marital status and not from any
contract, conveyance, or other act of the spouse.
Statutes conferring such rights on a surviving
spouse make the spouse a statutory heir. Some
statutes regulating the rights of inheritance of a
surviving spouse treat property acquired by the
decedent prior to the marriage differently than
that acquired during the course of the marriage.
Others relating to the descent of ancestral estates
and property acquired by gifts do not, ordinarily,
exclude a surviving spouse.
Right of Surviving Wife As a general rule,
modern statutes confer rights of inheritance on
a widow. At common law, the wife was entitled to DOWER, which was a fixed interest in all the
land owned by her husband during the marriage.
This interest in the lands of her husband
was inchoate during his life. She had to survive
her husband before she could take possession of
her interest in the property. Most states have
abolished common-law dower and have
replaced it with statutes allowing the surviving
widow to take an elective share prescribed by
statute, usually one-third or what would have
gone to her by intestacy or the provision made
in her spouse’s will. The extent of and the
method for computing the inheritance depends
on the terms of the statute applicable to the facts
in the particular case. Her rights attach only to
property that her husband owned at the time of
death. The right of a wife to share in the estate of
her husband is qualified by his right to make a
valid will. The widow, however, will be given a
RIGHT OF ELECTION to choose between the elective
share, which is usually her share under the
laws of intestacy, or the provision in the will,
whichever is larger.
Right of Surviving Husband At common
law, a surviving husband had an estate by curtesy
in his wife’s real property to which he was
absolutely entitled upon her death. Curtesy has
been abolished by many jurisdictions. As of the
early 2000s, a husband’s rights of inheritance are
regulated by statute applicable to the facts in the
particular case. As a general rule, a widower’s
rights of inheritance attach only to property that
his wife owned and possessed at the time she
died.
Rights in Case of Remarriage
Unless a statute provides otherwise, a surviving
spouse’s rights of inheritance are not
affected by a later marriage after the death of the
decedent. The rights of a survivor of a second or
subsequent marriage of the decedent are the
same as though he or she were the survivor of
the first marriage. In a number of states, the
rights of a survivor of a second or subsequent
marriage of the deceased or of a surviving
spouse who subsequently remarries are, or have
been, governed by statutes specifically regulating
descent in cases of remarriage.
Waiver or Release of Right
A spouse can waive the right of inheritance
to the estate of the other spouse by an antenuptial
agreement, which is fairly entered into by
both parties with knowledge of all the relevant
facts, such as the extent of the spouse’s wealth.
This is frequently done by couples who remarry
late in life, in order to protect the inheritance
rights of their children by previous marriages.
For example, an affluent couple executes an
antenuptial agreement by which they both agree
to surrender their inheritance rights in each
other’s estate. This insures the inheritance rights
of their children from prior marriages in their
respective estates, without having the estate
reduced by the share given to the surviving
spouse under the laws of intestacy. To be effective
as a bar, the agreement must, in clear terms
or by necessary implication, relinquish the surviving
spouse’s right of inheritance. It must
affirmatively appear that neither spouse took
advantage of the confidential relation existing
between the parties at the time of its execution.
Unless there are statutory provisions to the
contrary, a husband or wife can waive, release, or
be estopped (prevented) from asserting rights of
inheritance in the estate of the other by certain
acts or conduct on his or her part during marriage.
As a general rule, a spouse can waive his or
her rights in the estate of the other by an express
postnuptial agreement. Such an agreement is
effective only if it manifests a clear and unmistakable
intention to trade away such rights, and
it must be supported by a valid and valuable
consideration, freely and fairly made; be just and
equitable in its provisions; and free from FRAUD
and deceit. In one case, the assent of a wife to
cohabit with her husband only upon his execution
of a release of any claim on her property did
not constitute sufficient consideration for his
agreement, since she was under a legal duty as
his wife to live with him.
A separation agreement can provide for the
mutual release of the rights of each spouse in the
other’s property, including an inchoate or
potential right of inheritance that will not vest
until the death of one spouse. The rights of
inheritance in the property of the husband or
wife are not to be denied the surviving spouse
unless the purpose to exclude him or her is
expressed or can be clearly inferred. A PROPERTY
SETTLEMENT agreement conditioned upon a
DIVORCE cannot bar a spouse’s statutory share
in the other’s estate where the divorce was never
finalized because of the death of the spouse. A
mere agreement between HUSBAND AND WIFE in
contemplation of divorce, by which specific articles
of property are to be held by each separately,
is no bar to the rights of the surviving spouse, if
no divorce has in fact been granted.
The surviving spouse, however, is not prevented
from asserting his or her rights in the
estate of the deceased spouse by an agreement
entered into as a result of ignorance or mistake
as to his or her legal rights.

Forfeiture of Rights
As a general rule, a surviving spouse’s misconduct,
whether criminal or otherwise, does
not bar his or her rights to succeed to the
deceased person’s estate where the statute of
descent and distribution confers certain rights
on the surviving spouse and makes no exception
on account of misconduct.
Abandonment, Adultery, and Nonsupport
Unless there are statutes to the contrary, the fact
that one spouse abandoned or deserted the
other, or even the fact that he or she abandoned
the other and lived in ADULTERY, does not bar
that spouse’s rights of inheritance in the other’s
estate. However, in a number of jurisdictions
express statutory provisions do not permit a
surviving wife to succeed to her husband’s estate
if she has abandoned him or left him to live in
adultery. A surviving husband similarly loses his
statutory right to inherit from his wife’s estate
where he abandoned or willfully and maliciously
deserted her or neglected or refused to
support her. In order to constitute a FORFEITURE
of inheritance rights, such conduct must be
deliberate and unjustified and continue for a
period of time specified by statute.Mere separation
is not necessarily ABANDONMENT or desertion
if the parties have consented to the
separation or there is reasonable and justifiable
cause for the action. The fact of one spouse’s
subsequent meretricious conduct is not abandonment
if a separation agreement does not
provide for forfeiture of that spouse’s right to
share in the decedent’s estate.
Murder of Spouse There is no uniform rule
as to whether a person who murders his or her
spouse can succeed to the decedent’s estate as
the surviving spouse. Some jurisdictions refuse
to recognize the murderer as a surviving spouse.
In others, a statute that confers certain rights on
the surviving spouse does not strip the spouse of
that right because he or she caused the death of
the intestate spouse by criminal conduct. Different
states have enacted statutes that preclude any
person who has caused or procured the death of
another from inheriting the decedent’s property
under certain circumstances. An intentional
killing will bar an inheritance, but a death that
occurs as a result of NEGLIGENCE, accidental
means, or insanity will not have this effect. For
example, where conviction is essential to create a
forfeiture under the statute, a surviving spouse
who is not convicted but is committed to a state
hospital for the legally insane is not excluded
from the rights of inheritance. A conviction of
MANSLAUGHTER might be sufficient to satisfy
the statutory requirement of conviction, but it is
insufficient if the statute requires actual conviction
of murder.
Bigamous Marriage In some jurisdictions,
a spouse who commits bigamy, marrying while
still legally married to another, can be denied
any rights of inheritance in the estate of his or
her lawful spouse. This is true even if the bigamous
marriage had been terminated long before
the death of the lawful spouse. In a few jurisdictions,
the fact that one who was legally married
to the decedent contracted a bigamous marriage
does not bar his or her rights of inheritance in
the decedent’s estate.
Divorce Generally, a person who has been
divorced can claim no share in the estate of the
former spouse. Under some statutes, a divorce a
mensa et thoro (Latin for “from bed or board”),
which is a legal separation, can abrogate any
right of intestate inheritance in the spouse’s
estate, even though the decedent and spouse
remained lawfully married until the death of the
decedent.
Rights and Liabilities of Heirs
No one is an heir to a living person. Before
the death of the ancestor, an expectant heir or
distributee has no vested interest but only a
mere expectancy or possibility of inheritance.
Such an individual cannot on the basis of his or
her prospective right maintain an action during
the life of the ancestor to cancel a transfer of
property made by the ancestor.
Advancements An advancement is similar
to an absolute or irrevocable gift of money or
real or personal property. It is made in the present
by a parent to a child in anticipation of what
the child’s intestate share will be when the parent
dies. An advancement differs from an ordinary
gift in that it reduces only the child’s
distributive share of the parent’s estate by the
stated amount, while a gift diminishes the entire
estate. The doctrine of advancements is based
on the theory that a parent is presumed to
intend that all his or her children have equal
rights not only in what may remain at the parent’s
death but in all property owned by the parent.
Statutes of descent and distribution can provide for consideration of advancements
made by a deceased during his or her lifetime to
achieve equality in the distribution of the estate
among the children.
An advancement can also be made by grandparents
and, where statutes permit, by spouses
and collateral relatives. A parent’s gifts to a child
cannot be deemed advancements while the
donor is alive, since they are significant only in
relation to a decedent’s estate. Several statutes
provide that no gift or grant of realty can be
deemed to have been made as an advancement
unless expressed in writing by the donor or
acknowledged in writing by the donee. A transfer
based on love and affection or a nominal
consideration can constitute an advancement,
while a transfer for a valuable consideration
cannot, since as a gift, an advancement is made
without consideration.
Release, Renunciation, or Acceptance of
Rights An heir can relinquish his or her rights
to an estate by an express waiver, release, or
ESTOPPEL. Generally, the release of an expected
share, fairly and freely made to an ancestor in
consideration of an advancement or for other
valuable consideration, excludes the heir from
sharing in the ancestor’s estate at the time of
death. It is necessary that the person executing
the release be competent to contract at the time,
that the release not be obtained by means of
fraud or UNDUE INFLUENCE, and that the instrument
or transaction in question be sufficient to
constitute a release or renunciation of rights. In
one case, a daughter gave her father a receipt
acknowledging payment of money that she
accepted as her “partial” share of all real estate
left by him. The court held that she was not
barred from sharing in the remainder of the real
estate left upon her father’s death, since the word
partial indicated that the money received was
merely an advancement.
At common law, a person could not
renounce an intestate share, but modern statutes
permit renunciation. A renunciation or a waiver
sometimes requires the execution and delivery
of a formal document. Renunciation is frequently
employed by those who would incur an
increased tax burden if the gift were to be
accepted.
A simple acceptance can be either express or
implied. A person can be barred from accepting
his or her rights to an estate by a lapse of time, as
specified by statute. Once a person accepts an
intestate share, he or she cannot subsequently
renounce the share under most statutes. A person
who renounces the succession cannot revoke
the renunciation after the other heirs have
accepted the property that constitutes his or her
share. However, that person can accept his or
her share if the other heirs have not yet done so.
Gifts and Conveyances in Fraud
of Heirs
A person ordinarily has the right to dispose
of his or her property as he or she sees fit, so that
heirs and distributees cannot attack transfers or
distributions made during the decedent’s lifetime
as being without consideration or in fraud
of their rights. For example, a parent during his
or her life can distribute property among his or
her children any way he or she wants with or
without reason, and those adversely affected
have no standing to challenge the distribution.
One spouse can deprive the other of rights
of inheritance given by statute through absolute
transfers of property during his or her life. In
some jurisdictions, however, transfers made by a
spouse for the mere purpose of depriving the
other of a distributive share are invalid.Whether
a transfer made by a spouse was real or made
merely to deprive the other spouse of the statutory
share is determined by whether the person
actually surrenders complete ownership and
possession of the property. For example, a husband’s
transfer of all his property to a trustee is
void and illusory as to the rights of his surviving
wife if he reserves to himself the income of the
property for life, the power to revoke and modify
the trust, and a significant amount of control
over the management of the trust. There is no
intent to part with ownership of his property
until his death. Such a trust is a device created to
deprive the wife of her distributive share.
Advancements or gifts to children, including
children by a former marriage, which are reasonable
in relation to the amount of property
owned and are made in GOOD FAITH without
any intent to defraud a spouse, afford that
spouse no grounds of complaint. Good faith is
shown where the other spouse knew of the
advancements. If a spouse gives all or most of
his or her property to the children without the
other spouse’s knowledge, a rebuttable presumption
of fraud arises that might be
explained by the children.
Title of Heirs and Distributees
Inheritance rights vest immediately on the
death of an intestate, and the heirs are usually determined as of that time. The title to realty
ordinarily vests in an intestate’s heirs immediately
upon his or her death, subject, under varying
circumstances, to certain burdens, such as
the rights of the surviving spouse or the debts of
the intestate. The title obtained by the heirs on
the death of their ancestor is subject to funeral
expenses, the expenses, debts, or charges of the
administration, and the charges for which the
real property is liable, such as liens and encumbrances
attached to the land during the lifetime
of the intestate.
At common law and under the statutes of
most states, the title to personal property of a
deceased person does not ordinarily vest in his
or her heirs, next of kin, or distributees on his or
her death. Their title and rights, therefore, must
generally be obtained or enforced by virtue of
administration or distribution. Legal title to personal
property is suspended between the time of
the intestate’s death and the granting of the LETTERS
OF ADMINISTRATION. On distribution, the
title of the distributees relates back to the date of
the intestate’s death. While the title to personal
property does not immediately vest in the heirs,
their interest in the estate does. The heirs have a
vested equitable right, title, or estate in the personal
property, subject to the rights of creditors
and to charges and expenses of the administration.
The personal estate of an intestate goes
ultimately to those who are next of kin at the
time of the intestate’s death as opposed to those
who are next of kin at the time that the estate is
to be distributed. If a person who is entitled as a
distributee dies after the death of the intestate
and before distribution, his or her share does
not go to the other persons entitled as distributees,
but instead passes to his or her own heirs.
Debts of Intestate Estate
Heirs and distributees generally receive
property of their ancestor subject to his or her
debts. The obligation of an heir or distributee to
pay an ancestor’s debt is based upon his or her
possession of the ancestor’s property. All property
of an intestate ordinarily can be applied to
pay his or her debts, but, generally, the personal
property must be exhausted first before realty
can be used.

Rights and Remedies of Creditors, Heirs, and Distributees
The interest of an heir or distributee in the
estate of an ancestor can be taken by his or her
creditors for the payment of debts, depending
upon the applicable law. Advancements received
by an heir or distributee must be deducted first
from his or her share before the rights of creditors
of the heir or distributee can be enforced
against the share.

FURTHER READINGS
Akright, Carol. 2001. Funding your Dreams Generation to
Generation: Intergenerational Financial Planning to
Ensure your Family’s Health, Wealth, and Personal Values.
Chicago: Dearborn Trade.
Brashier, Ralph C. 2004. Inheritance Law and the Evolving
Family. Philadelphia, Pa.: Temple Univ. Press.
Condon, Gerald M., and Jeffrey L. Condon. 1994. Beyond the
Grave: The Right Way and the Wrong Way of Leaving
Money to Your Children. New York: HarperInformation.
Daly, Eugene J. 1994. Thy Will Be Done: A Guide to Wills, Taxation,
and Estate Planning for Older Persons. Amherst,
N.Y.: Prometheus.

CROSS-REFERENCES
Consanguinity; Decedent; Escheat; Premarital Agreement.