Descendants

The term “descendant” is broader than the word “child”. For intestacy purposes, it includes all persons who proceed from the body of the decedent. When a person dies intestate, the estate goes to his or her lineal descendants. Parents and other ancestors do not have the right to inherit unless the person does not have any lineal descendants (child, grandchildren, great grandchildren etc.). Let’s look at some illustrations.

2.3.1 Illustration One

LaToya, a widow, died intestate leaving behind four children, Greta, Malia, Juanita, and Sasha. LaToya’s estate will be split into four portions because she had four surviving children and no surviving spouse.

Illustration One shows that it is not complicated to determine the manner in which a

decedent’s property should be divided under the intestacy system. Nonetheless, the formula for distributing an intestate decedent’s estate can become complex if one or more of the decedent’s children does not survive the decedent. Under the intestacy system, the decedent’s child(ren)’s descendants can inherit his or her estate by representation.2 _{This means that the issue of the} decedent, including his or her grandchildren, great grandchildren etc., represents his or her deceased

29

children for purposes of the distribution of his or her estate. The next illustration will help the student visualize this principle.

2.3.2 Illustration Two

Diane died in 1978. She was survived by her husband Clyde and their eight children, Corey, Gigi, Christopher, Elizabeth, Stephanie, Marcia, Timothy, and Oscar. In 1986, Marcia died of a massive heart attack while riding a roller coaster. Marcia was survived by her husband, Jarvis, and her three daughters, Wanda, Ruth and Tracie. When Clyde died in 2000, he was survived by seven of his children, Marcia’s husband and Marcia’s three daughters.

Clyde’s estate would be divided into eight portions because that is the number of his original children. Each of Clyde’s surviving children would receive a one-eighth share of his estate. The share of the estate that would have gone to Marcia, the child who predeceased Clyde, would be divided between her three daughters. As a result, Clyde’s estate would be distributed as follows: Corey (1/8), Gigi (1/8), Christopher (1/8), Elizabeth (1/8), Stephanie (1/8), Timothy (1/8), Oscar (1/8), Wanda (1/24), Ruth (1/24) and Tracie (1/24). Since most intestacy statutes exclude sons-in-law and daughters-in-law, Jarvis, Marcia’s husband, would not be entitled to receive any part of Clyde’s estate.

In all jurisdictions, the intestacy system allows descendants of the decedent to inherit by representation. Consequently, Marcia’s daughters would have the right to receive her share of Clyde’s estate. The definition of “taking by representation” varies from state to state. The shares that the descendants receive depend upon which one of the three commonly used methods of representation that is applied. The main difference in each method is where the division into portion occurs. The decedent’s estate may be divided at the generational level immediately below the decedent or the generational level where a live descendant exists. This will be explained in more detail later in this chapter.

2.3.3 Two Important Rules to Remember

The three systems of representation will be discussed in the next section. In order to fully comprehend how the decedent’s estate will be divided, it is important to know two rules.

Rule One: The descendants whose parents are living do not receive a share of the decedent’s estate.

Example:

Miguel, a widower, had three children, Juan, Carlos and Isabella. Unfortunately, Miguel lost his son Carlos in a car accident. Carlos was survived by two children, Manuel and Alejandro. Juan has a son named Mateo. Isabella had two children, Elena and Joaquin. Miguel died survived by Juan, Isabella, Manuel, Alejandro, Mateo, Elena and Joaquin.

30

Carlos’ children take his share by representation of their dead father. Miguel’s estate is distributed as follows: Juan (1/3), Isabella (1/3), Manuel (1/6), and Alejandro (1/6). Manuel and Alejandro split their father’s share of their grandfather’s estate. Even though they are Miguel’s grandchildren, Mateo, Elena and Joaquin are not entitled to a portion of Miguel’s estate because their parents survived Miguel.

Rule Two: Once a blood line dies out, it is ignored in the division of the decedent’s estate.

Example:

Rebecca, a widow, had three children, Noah, Jacob and Ava. Unfortunately, Jacob was killed in an airplane crash. Jacob did not have any children. Noah had two children, Joshua and Eli. Ava had three children, Daniel, Caleb and Hannah. When Rebecca died, she was survived by Noah, Ava, Joshua, Eli, Daniel, Caleb and Hannah.

Explanation:

Rebecca’s estate will be divided into three parts to represent her three original children. Each of Rebecca’s children is entitled to receive a third of her estate. Since Jacob died without surviving descendants, his share of Rebecca’s estate will be divided between his siblings, Noah and Ava. Noah will receive his one third of his mother’s estate plus one sixth of Jacob’s interest in the estate. Thus, Noah’s interest in Rebecca’s estate will total one-half. Like Noah, Ava will end up receiving one-half of Rebecca’s estate. To avoid the complex computations, it is easier to ignore Jacob’s interest and to divide Rebecca’s estate into two shares. You will get the same result using either method.