Friday, February 12, 2016

Who Inherits Your Estate? Part One: Simple Inheritance

Here is the second in my supplemental series on estates.

Determining heirs and dividing estate property can get complicated.  Even the legal terminology is tough for the non-lawyer: Intestate Succession.  A determination of heirs is unnecessary with a proper Last Will and Testament, but for those who die possessed of property but without a will, it can get tricky.

I will ease into this topic slowly, and we will cover it in a number of posts.  To help demonstrate the law, I will draw from a number of different examples.

Example A:    Herman Smith dies at age 53, survived by a wife and two natural children.

Example B:     Cindy Johnson dies at age 68, survived by her husband and two natural daughters.  Cindy is also survived by the widow and daughter of a predeceased son.

Example C:     Billy Jones dies at age 22, having never married.  He is survived by both natural parents, two brothers and one sister.  He is also survived by a child he fathered, but with whom he has never maintained meaningful contact.  He never married the child’s mother.

Per Miss. Code Ann. § 91-1-7, if a person dies with a spouse but no children – either natural or adopted – then the surviving spouse inherits the entire estate.  That is simple enough.  If that person instead dies with a spouse and children, and/or descendants of predeceased children, the estate is divided into equal shares, with each child, living or dead, getting one share each, the descendants of the predeceased child sharing their deceased parent’s share, and the surviving spouse getting a share.

Example A is a typical scenario.  Herman’s estate would be split into three equal shares, with Herman’s wife getting one share, and his two natural children getting one share each.  This is not the law in every other state.  Some states allow the widow to inherit a larger share.  Mississippi gives the surviving spouse equal footing with the children.  

Had Herman also adopted a child during his life, his estate would be split into four equal portions to be shared equally by the surviving spouse, two natural children and one adopted child.  Per Miss. Code Ann. § 93-17-13, adopted children inherit from their adoptive parents as a natural child would.

In Example B, Cindy’s estate would be divided into four equal shares, with her surviving husband getting one share, her two surviving daughters getting one share each, and the child of Cindy’s predeceased son getting the final share.  The widow of the predeceased son gets nothing.  Per Miss. Code Ann. § 91-1-3, the spouse of a predeceased child is not a descendant.  Because Cindy’s son died before Cindy, he never became vested with a present ownership in the property in Cindy’s estate, therefore, pursuant to the laws of descent and distribution, it passed to Cindy’s surviving spouse and descendants. This scenario would be different if Cindy's son had died after Cindy.  In that situation, the son's widow would obtain 1/2 of her deceased husband's interest, with the child obtaining the other half.

Example C is where you step off into complications.  Pretending there was no illegitimate child, Billy’s estate would be divided into five equal pieces, with mom and dad getting one share each, and the three siblings getting one share each.  Illegitimates inherit freely from their mothers (per Miss. Code Ann. § 91-1-15); however, that is not necessarily the case with illegitimates’ fathers.  An illegitimate child can only inherit through their father if certain statutory requirements are met, namely:

           1)  The natural parents participated in a marriage ceremony before the birth of the child;

           2)  There was an adjudication of paternity prior to the father’s death, or;

      3) There was an adjudication of paternity after the father’s death if the case seeking an adjudication was filed within one year of the father’s death.  The child, or the person bringing the post-mortem case on his behalf, must prove paternity by clear and convincing evidence.

It is not uncommon to obtain an adjudication of paternity during the father’s life as an aid in obtaining child support.  However, the results can be harsh if that is not done.


Anonymous said...

Thanks for this information -- very informative!

Anonymous said...

C doesn't always work that way. The Father dies without a will and the brothers, sister and mother never tell the youngest child. One of the Brothers reaps many benefits from the Mother and later obtains her Power of Attorney.... makes sure the youngest Child is disinherited, (the older Brother is left out and the Sister is unaware of his dastardly deeds) 3 weeks prior to the Mothers death 25 years later. The Brothers and Sister try to sell the Mothers home and lo and behold... They can not with out the youngest child's signature.
The youngest child has 1/8 inheritance because the Father died without a will. What would you do?

Troy Odom said...

First, assuming the truth of your facts, and further assuming I'm representing the youngest child in this scenario, I'd see if the statute of limitations had run on contesting the probate of Mother's Will. It may be Mother's Will is invalid due to undue influence from the child with a confidential relationship with her. It may also be that more of the "benefits" one of the brothers reaped can be reversed. I'd then encourage my client to probate both estates so that distribution can take place under the supervision of the Court.