Law of Wills, 2016A

child. Professor Marjorie Maguire Shultz states that legal parenthood should be determined
by evaluating the intentions of the parties. Specifically, Professor Shultz opines “intentions
that are voluntarily chosen, deliberate, express and bargained for ought to determine legal
parenthood.”
(4) De Facto Parent- Professor Charles P. Kindregan, Jr. advocates legally recognizing a de facto
parent. This approach has been championed by the drafters of the ALI Principles of the Law
of Family Dissolution. Pursuant to that document, a de facto parent must satisfy the
following conditions: (1) live with the child for two years or more; (2) have non-financial
motives; (3) present evidence of an agreement by a legal parent or evidence of a complete
lack of caretaking function by the legal parent; and (4) perform caretaking duties on a regular
basis at least on par with the duties performed by the parent serving as the child’s primary
caretaker.
5. What impact could the recognition of several classes of parents have on the intestacy system?
6. In deciding whether or not to recognize a parent-child relationship based upon something other
than biology, what factors should the courts consider?
7. Should the parental theories discussed above be implemented into the current intestacy statutory
regime or should courts be given the flexibility to apply the doctrines on a case by case basis? What
are the pros and cons of each approach?
8. The purpose of the intestacy system is to carry out the presumed intent of the testator. Will that
purpose be better carried out if the courts recognize different types of legal parent-child
relationships?
2.5.2 Other Ancestors and Collaterals
If an intestate decedent is not survived by children or parents, it is logical that the estate
would go to the decedent’s grandparents. However, the intestacy system does not operate in that
manner. In cases where there are no surviving descendants or parents, the decedent’s estate goes to
his or her collateral kindred. There are two set of collaterals—first line and second line. First line
collaterals include the decedent’s siblings 4 who take if he or she is not survived by children or
parents. The decedent’s nieces and nephews step into the shoes of any siblings who predecease the
decedent. The decedent’s aunts and uncles are referred to as second line collaterals. The second line
collaterals may take if the decedent is not survived by first line collaterals.
Example:
Willis never married or fathered children. His parents predeceased him. Willis had three sisters,
Beverly, Cissy, and Whitney and one brother, Theo. Cissy predeceased Willis leaving behind two
sons, Vance and Donovan. Willis died intestate survived by Beverly, Whitney, Theo, Vance and
Donovan.
4
Most jurisdictions have followed the UPC’s approach and treat half-siblings the same as whole sibling. (UPC § 2-107
“Relatives of the half-blood inherit the same share they would inherit if they were of the whole blood.”
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