- Problem 3:
B -- A PS
|___|
C
A dies. PS = Previous spouse.
- B gets: 50% of the property that isn't marital (i.e., not A's share
of property and not a's share of tenancy in common with B).
These two are the same at death: at death marital property
becomes a tenancy in common between the spouse and the estate
of the decedent.
Remember: we're not dealing with non-probate property here. So
what categories do we have in play here?
- Non-marital property
- Stuff owned soley by A
- Unclassified property
- Marital property
- A owns half of this
- B owns half of this, so it is NOT IN PLAY
HERE
- A's half of tenancy in common with B
- B's half of tenancy in common is owned by B and is
therefore NOT IN PLAY HERE
Note that this is all about intestacy. This is not
a public policy decision-- A could make a will at any time and
designate any beneficiary whatsoever. But absent that, we are
stuck with &852.01(1)(a)2a, b.
So the intestacy statute gives half of the estate not including
A's half of the marital property or A's half of tenancy in common.
In other words, probably not a great deal.
- Problem 4:
PS A ---- B
|___||_____||_______|
C3 C4 C1 C2 C5 C6 C7
- 4a: §852.01(1)(a)2. B gets half of nothing (there was no non-marital
property. Under §852.01(1)(b), C1-C2-C3-C4 get everything. Note
that this is only intestacy: there might be a great deal of property
going to B that is passed non-probate. C5-C6-C7 get zip:
§854.21(3) (some jurisdictions have the doctrine of
constructive adoption, but it's pretty narrow, and anyway WI
does not). C3 and C4 get included not because of §854.21(4) : says
half-blood take same as full blood, but because they all are
issue of A. A had 4 kids, not 2 kids and 2 half-kids. §854.21(7)
is a red herring, by the way, because there is no governing instrument
from which we can deduce A's intent (intent and intestacy don't
mix).
- 4b: Uniform probate code. Here, all property goes to the surving
spouse (this conforms to our notions of community property).
§2-102(a)(1)
- ProTip: Marital property does not include
survivorship. The default status of all community property
systems is NOT survivorship. This is counter-
intuitive: by default, when one spouse dies, the other spouse
may get nothing-- it all goes to the issue.
- Problem 5:
- Same as 4, but A is already dead, and now C3 dies. So now the
half-blood relationship (betweeb C3 and C1-C2) is important:
it turns out that C3 has 3 siblings.
- Problem 6:
A2 A1 F -- M U1 U2 U3
|___| \ |____|
C2 C3 C1 A
C1 is adopted-- that's what that slanty line means. :)
This is what's called a "collateral relative" issue: not just siblings,
but aunts and uncles. Basic message: if these are your closest relatives,
you need a will-- there's no obvious way to resolve the situation, so it's
all arbitrary. First, let's decide: if cousins are takers, does the adopted
cousin count as a cousin?
- §854.20(1)(b): No. C1 is not in line for any assets. In order
to be counted under WI law, you must meet one of three criteria
- Transfer between parent and child: this is from A, who is
neither a parent nor a child of C1.
- Be a minor at the time of adoption: C1 ws 23, so the
adoption didn't create a real "parent-child"
relationship.
- Child came to the family on or before 15th birthday: C1
was 15 on arrival.
Note that &854.21(7) doesn't help: the fact that A really liked
C1 and considered C1 a family member is immaterial because intent
does not matter in intestacy. The concern here is "strategic
adoption:" adopting someone not because they want a parent-child
relationship but because it has some other advantage (i.e., adopting
your business partner in order to dodge taxes; same-sex partners
adopting one another in order to make them heirs). Anyway, C1 is
out, by statute (but law-in-acton: if C2 and C3 like C1 and the
A-C1 relationship was indeed close, they might well help C1 out).
- So what happens to A's estate? §852.01(1)(f). Half goes to the
uncles: so they each get 1/6. Half goes to the aunts: A1 gets
1/4, C2 and C3 get 1/8.
- Law in action: if there's enough money at stake, even clear issues
can become obscure.
- So, how do you do an adult adoption? Wis. Stats. § 882.
It's a short and simple statute.
- Why is there no §852.01(1)(e)? It was removed. This is for
disambiguation.
- There are heir search firms who specialize in finding people
who should get money. They tell them: hey, a relative of
yours died, and for 25% of what you'd inherit, we'll tell
you who it was.
- OK, now we're entering "representation" and this whole per
stirpes thing. We cover this under intestacy, although
it could fit just as well elsewhere-- it's a more general
issue than just intestacy.
- Representation becomes a problem when we need to go a generation
beyond the scope of basic inheritance (i.e., two surviving
children, and two grandchildren of a third deceased
children). This also comes up in long-running trusts, where
assets are placed in trust for grandchildren. It's actually
not that common a problem in ordinary wills and trusts or
intestacy. So:
P
|______|
C1 C2 C3
|____| |
GC1 GC2 GC3
GC1 and GC3 have differing opinions as to how they should
each inherit, assuming C1 and C2 are dead.
- Per Stirpes ("by roots"): each family line gets an equal share,
and that's divided up.
- Per Capital: everybody at each generation who is getting anything
gets an equal amount.
- The general rule is "representation." We pass property to
grandchildren "by representation." But what exactly does
that mean? It means something, but the details are
not obvious.
- Problem 7:
In WI, we actually say per stirpes (because we want to be more
specific than just "by representation"). UPC says "representation"
means "per capita at each generation." So each has a default rule.
A ---------- B
|____________|
W -- C1 C2 -- H C3
|____| |_____| |______|
G1 G2 G3 G4 G5 G6
- 7a: Per stirpes. So we create shares for each child who is
alive, and for each
child who is not alive but left surviving issue. C1 and C2 are
dead.
So: 3 shares. G4-6 get nothing, because C3 inherited.
G2 and G3 each get 1/2 of a share, so 1/6.
G1 gets 1/3.
- 7b: Per capita at each generation. Create a share for each
person who is alive, and a share
for each person who is pre-deceased and left surviving issue.
So, again, three shares.
C3 gets to keep the share: 1/3.
For the other people, combine the shares of C1 and C2, and send that
down the line. So G1-3 each inherit 1/3 of 2/3 of the original. So,
2/9.
- 7c: Modified "per stirpes." If you're at a generation, and
there's no survivor at all, then skip that generation. That doesn't
apply here.