Law of Wills, 2016A

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.
Explanation:
29