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Descent and Distribution, Generally

Descent and Distribution, Generally

Traditionally, a state statute of descent and distribution provides the order of preference for disposal of an intestate’s net estate. As a general rule, the person or persons with the highest rank in the order of preference who survive the intestate take all of the intestate’s net estate.

Statutory Heirship

In most statutes of descent and distribution, a surviving spouse has the highest preference. Unless the surviving spouse has waived the right to inherit in a prenuptial agreement or separation agreement, the surviving spouse is usually entitled to all or a substantial portion of the intestate’s net estate. The claim of a surviving spouse is known as statutory heirship. The surviving spouse is usually the only person related to the intestate by marriage who takes a portion of the intestate’s net estate.

Succession and the Civil Law Method

After a surviving spouse, or if there is no surviving spouse, children usually take a substantial portion of the intestate’s net estate. Children of the half-blood were historically disinherited, but today they are usually treated equally with children of the whole blood. Stepchildren have not achieved the same status. Stepchildren are usually disinherited or rank low in the order of preference. Other relatives may have a specific status in the order of preference.

Traditionally, in most statutes of descent and distribution, a point is reached where the nearest blood relative is determined in a general manner. Many states use what is known as the civil law method. Under the civil law method, you find the closest common ancestor and count one for every generation up from the intestate to the common ancestor, and one for every generation down from the common ancestor to the relative. The nearest blood relative has the smallest total.

Primogeniture

One method used to determine who will inherit, primogeniture, is not used in the United States, but is of interest because it is used in England to determine inheritance among royalty. Primogeniture provides that the eldest surviving male child, if any, takes the estate to the exclusion of all others, and if there is no surviving male child, the eldest female takes the estate to the exclusion of all others. Currently, the heir apparent to the English throne is Prince Charles. Should Prince Charles take the throne, his eldest son, Prince William, will become the heir apparent.

Escheat

If an intestate dies and leaves no heirs, the intestate’s net estate becomes the property of the state. The process is known as escheat (pronounced: ess-cheat). To avoid escheat, a significant effort should be made to find any heirs of an intestate.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.