WRITTEN ASSIGNMENT III: COMMENTS & BEST STUDENT ANSWERS FROM FALL 2002
(1) Descriptions: As is true every year, some of you did quite sloppy work on this part of the assignment. You will spend much of your life parsing statutory provisions; get into the habit of being careful dealing with them. When describing legal authority to a client, remember that a key function of a lawyer is to translate the law accurately and accessibly. Your client needs you to be both correct and understandable.
Some of you made lots of errors in explaining what your statute does. Beware of the temptation to sacrifice accuracy for clarity by oversimplifying the statute. When in doubt, precision is more important. Remember that if you are unclear, the client can always ask you to explain more; if you are inaccurate, the client often will never know until it’s too late.
That said, do your best to write accessibly. One common problem was the use of legal terms of art that the client was unlikely to understand. Legal terms to which law school may have accustomed you are meaningless to many people, or worse, have a common meaning different from the legal one. Be sure to define carefully any terms you are not sure the client will understand.
In addition to using clear language, you can take other steps to make your description accessible to your client. Use introductory paragraphs to provide context for the reader. Try to explain materials in an order that makes logical sense to you; following the format of the statute too closely can hinder understanding. Use examples to illustrate complex provisions. The representation rules in particular are easier to understand in the context of illustrations and examples. Although certainly not necessary, the use of charts can be very helpful. As I noted at the outset, a larger percentage of you than has been true in the past did some or all of these things.
For clarification, I present a short glossary of technical legal terms that many of you misdefined or misunderstood:
Intestate Succession: distribution of property not governed by a valid will. It includes both the property of deceased individuals who did not leave a valid will and, where an individual left a valid will that not dispose of all her property, the property not governed by the will. Most of you did not mention the latter situation, which is called “partial intestacy.” The entry “Covered Property” at the top of the grading sheet refers to this issue.
Decedent: the deceased individual. This needs to be defined. Did you really know what it meant before this assignment?
Issue: lineal descendants (i.e., children, grandchildren, great-grand-children, etc.) "Issue" does not include other relatives such as cousins, nieces, or nephews, and is not limited to just children. Also "issue" is a plural noun, so your verbs should use plural forms. Thus, the decedent's issue take (not takes) everything if no spouse survives. Because "issue" itself is plural, "issues" is incorrect when referring to descendants.
Next of Kin: Most statutes contain some reference to next of kin. This is not a self-defining term. It refers to the relation closest in “degree” to the decedent. Degree (unless defined differently by the statute) means generational step; that is, each generation between a person and an ancestor or descendant counts as one degree. To determine the degree of relationship of your kin, you count up to your nearest common ancestor and then back down to the other person. Your grandmother's great-grandchildren (your first cousins once removed) are fifth degree kin: up to mother (1); up to grandmother (2); down to uncle Teddy in Pittsburgh (3); down to Cousin Arlene (who married that very strange man from New York) (4); down to her son Edmund (5th degree). Thus, kin of "equal degree" are the same distance away from you.
Advancement: is a term to describe gifts from a person to his apparent heirs as an "advance" against the eventual inheritance. For example, a widow with 2 children might say to her daughter, Judy, "I will give you $30,000 to go to law school, but I want it to be part of your share of my estate when I die." If she then dies leaving $50,000, $40,000 would go to her boy Elroy, and the other $10,000 to Judy, since Judy was "advanced" the other $30,000. Most states will not treat gifts to apparent heirs as advancements unless a written document establishes that the parties intended that treatment for the gift.
Representation; per capita; per stirpes: these terms refer to methods for divvying up property among a group of relations who all are descended from a common ancestor like the decedent’s issue or brothers and sisters and their issue. In a pure per stirpes (by branch) jurisdiction, property is divided up equally among all the “branches” of the family tree in each generation, even if all members of that generation are deceased. In most jurisdictions, following the Uniform Probate Code, you look to the first generation in which there are living heirs. Each person in that generation who is alive or who is deceased but leaves living issue gets an equal share. The share of a deceased heir passes to that person's descendants in the same fashion. Both these types of inheritance are called representation, because some heirs "represent" their parent in the distribution of property. In a pure per capita (by head) jurisdiction, members of the same generation who are entitled to take each receive the same amount, regardless of which branch they are on.
Two examples will demonstrate the differences.
Example 1Example 2
AM
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B ——C ———— DN ————— O
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E F—G H P Q——R
In example 1, when A dies (where B and C are already dead), in all jurisdictions, the estate is divided in 3 parts, for B's, C's, and D's lines. D takes 1/3 in each case. In representation jurisdictions, however, (pure per stirpes or UPC) E takes B's 1/3 and F and G split C's 1/3, leaving them 1/6 each. In a pure per capita jurisdiction, the 2/3 left over (after D receives her share) is divided equally among the children of the deceased members of D's generation, on the theory that A would not wish to treat E, F and G differently. Thus, they each receive 2/9 of A's property.
In example 2, when M dies and N and O are dead already, a pure per stirpes jurisdiction splits the property into 2 branches, one for N and one for O. P receives N's share (1/2); Q and R split O's share (so 1/4 each). In a per capita or a UPC jurisdiction, you don't divide the property until you come to a generation containing living members. In this case, you divide in thirds for the 3 members of the P-Q-R generation, and each receives an equal amount.
Critique
When critiquing something, give your opinion and defend it. Don't be afraid to play with outrageous suggestions or to criticize. Many of you merely redescribed the major provisions of statute, said you thought it was what people would expect, said that the language was inaccessible, and said the substantive provisions were OK. Perhaps you argued that one or two things were bad without too much discussion. This type of critique satisfies the assignment, but is not too exciting to read and doesn't demonstrate a great deal of thought. If I said "straightforward critique," I meant I thought your work basically was of this variety.
When the best answers criticized a provision, they explored why the provision might have been drafted the way it was. They then compared the policies behind the current statute with the countervailing considerations they believed the statute ignored. You should get in the habit of trying to figure out why something is in place so that any proposed changes can try to deal with its original purpose as well as your current concerns.
Some responses to points many of you made in critiques: when considering the provisions made under intestacy for surviving spouses, keep in mind the number of protections for the spouse that exist outside the statute:
1) Often 1/2 the property owned by the couple will belong to the surviving spouse anyway, even before the operation of the intestacy rules. This is especially true in community property states like California and Texas. If so, the surviving spouse often owns 1/2 of the family home anyway, and part of the decedent's share will likely to return to the surviving spouse as well.
2) Property held "jointly" automatically belongs to the spouse through the right of survivorship. Many people own the family home this way, so are protected in the event of one spouse's death.
3) Homestead or dower provisions in many states leave a surviving spouse rights in the family house or other real property outside the normal intestacy rules. Check carefully before assuming a spouse is left out in the cold.
4) insurance and pension benefits likely go only to the spouse, and not to other heirs.
Given these arrangements, where a spouse survives, parents or issue of the decedent are likely to inherit substantial amounts of property only if there is a fairly large estate.
You should be aware that there are large differences in the statutes from state to state, particularly as to the amount the spouse receives and to whether remote relatives inherit. On the other hand, every state basically favors spouse and issue, then parents and their issue, then grandparents and their issue.
Many of you wanted to amend the statute to include friends or unmarried cohabitants. To date, no state recognizes an unofficial relationship as a source of rights in intestacy, although non-marital partners have rights in three states:
1) Hawaii allows an unmarried couples who cannot marry to register as “reciprocal Beneficiaries” which gives them some of the same rights as married couples, including intestate inheritance.
2) Oregon allows non-married people to inherit as spouses if they've lived together for ten years and held each other out as man and wife.
3) Vermont allows same-sex couples to enter into “Civil Unions,” which gives them the same rights as married couples.
In practice, I have trouble imagining how you draft a statute to cover unofficial relationships absent some registration system like Hawaii’s and Vermont’s or some longevity requirement like Oregon’s. Otherwise lots people might make claims regarding, e.g., short-term roommates who happened to die. In addition, if you suggest that fact-sensitive inquiries by the court ("closeness", "need", etc.) determine distribution, you should respond to the obvious argument that these inquiries would be much too expensive to undertake, particularly for small estates, and would simply funnel money to courts and lawyers. Of course, provisions that make work for lawyers are in your current best interests... .
MODEL DESCRIPTION #1: COLORADO
When a person dies (a “decedent”) without leaving a will or the will doesn’t includeall the decedent’s property, Colorado’s intestacy statutes determine 1) who may receive this person’s property (the “heirs”) and 2) how much they receive (their “share”). In overview, these statutes 1) place each heir in a defined category, 2) prioritize the categories, such that each category takes its share in order, and later categories may only inherit what remains of the estate, and 3) determine how much each share will be. This description will summarize these rules.
First Category: Spouse: If there is a surviving spouse, that person almost always takes the first share, even to the point where he or she takes the entire estate. For example, if the decedent left no surviving descendants (i.e., lineal descendants at all generations: children, grandchildren, great-grandchildren, etc.) and no surviving parents, the surviving spouse takes the entire estate. However, if there is one or more surviving parent (but still no surviving descendants), then the spouse’s share is reduced to $200,000 plus three-quarters of the remaining estate.
The other circumstance in which the spouse may take the entire estate is 1) if there are surviving descendants, 2) if these descendants are of both the decedent and the spouse, and 3) neither the decedent nor the spouse has other surviving descendants from another relationship. Modifications to the third (3) element may reduce the spouse’s share. For example, if the surviving spouse has his or her own descendants that are not of the decedent (e.g., children from a previous marriage or relationship), then the spouse’s share is $150,000 plus one-half of the remaining estate. If the decedent has one or more descendants that are not of the spouse and none of there are minor children, the spouse’s share is further decreased to $100,000 plus one-half of the remaining estate. However, if one or more of the decedent’s descendants that are not of the spouse are also minor children of the decedent, then the spouse’s share is again reduced to one-half of the estate. These three modifications are not applicable if, for example, both the decedent and spouse become parents through adoption. If this occurs, then such children are considered descendants of both parents.
The spousal relationship may be severed by divorce, annulment, or remarriage to another person. In this case, the former spouse has no claim, but the absence of a spousal claim does not affect the status of their descendants.
Second Category: Descendants: Once the surviving spouse’s share has been determined, or if there is no surviving spouse, the descendants take their share of what remains of the estate. An important point regarding who is a “descendant” is that this term is defined broadly, and those encompassed by this term are legally equivalent. For example, all of one’s “biological” children (and grandchildren, etc.) are considered that person’s descendants, regardless of the marital status of the parents. Also included are children born after (but conceived prior to) the decedent’s death. Similarly, adoption will confer the status of “descendant” on the adopted child. In contrast, a birth child given away for adoption is no longer considered the birth parent’s descendant, but may still qualify for a share under a different category.
Among the descendants, the first generation (i.e., the decedent’s children) has the highest priority, each taking an equal share of the remaining estate. The number of equal shares is determined by counting 1) the number of surviving children and 2) the number of deceased children. Only those deceased children that have surviving descendants are counted. The remaining estate is then divided by this number into equal shares, after which each surviving child receives one share. If there are unallocated shares because one or more deceased child was counted but did not receive a share, then the remaining, unallocated shares are 1) recombined and 2) redivided equally and distributed among the grandchildren. Shares continue to be distributed in this manner, one generation at a time.
Third Category: Parents and Their Descendants: Surviving parents may inherit a share if there are neither a surviving spouse nor surviving descendants, or if there is only a surviving spouse. The share allocated to the surviving parents is divided equally among the two of them if both survive, or given only to the one surviving parent.
However, if the decedent was given away for adoption, then only the decedent’s adoptive parents are included in this category. The birth parents, although not included here, may still inherit under a different rule.
If neither parent survives to inherit the remaining share of the decedent’s estate, the parents’ descendants may take a share. Examples of this category include the decedent’s siblings, nieces, nephews, etc. Half-siblings and the like are considered equivalent to full-blood siblings. Once the members of this category are determined, the shares are divided in a manner analogous to that used for the decedent’s descendants, described above.
Fourth Category: Grandparents and Their Descendants: If, as above, neither the decedent’s parents nor the parents’ descendants are available, then any remainder of the estate shifts to the decedent’s grandparents, and then to the grandparents’ descendants. Allocation of shares among the surviving grandparents and/or their descendants is also performed in a manner analogous to that described for the decedent’s descendants.
Fifth Category: Birth Children and Birth Parents: Birth children are naturally-born children of the decedent, but that were previously given away for adoption. As mentioned above, these children are not considered equivalent to the descendants of the second category. However, if there remains any part of the estate at this point in the allocation, birth children (or their surviving descendants) may inherit a share if they file a claim within ninety days of the decedent’s death.
Similarly, the birth parents of the decedent (having previously given the decedent up for adoption) are not entitled to claim in the same manner as the decedent’s adoptive and legal parents. However, they (or their descendants) may also file a claim within ninety days of the decedent’s death to take any remaining share of the estate. The birth parents’ claim is superceded by a valid claim from birth children.