Also known as: statutes of descent and distribution · descent and distribution statute · intestacy statute · descent statute
Written by attorneys — see sources below.
A statutory rule that governs the distribution of a decedent's property when the decedent dies intestate. The statute identifies the heirs or next of kin entitled to receive the net probate estate and directs how real property descends and personal property is distributed. Title passes by operation of law without a deed from the decedent.
Simone Sanders dies without a will owning a rural parcel. The probate court applies the state statute of descent and distribution and determines that her three first cousins are her heirs. Title to the parcel vests directly in the cousins by operation of law. No deed from Simone is required or executed.
Stephen Shaw kills his uncle and is convicted. The uncle dies intestate. The probate court holds that the statute of descent and distribution passes title to the uncle's other heirs rather than to Stephen. Equity imposes a constructive trust to prevent Stephen from retaining the property.
Howard Mahoney died intestate on May 6, 1961, of gunshot wounds. His wife, Charlotte Mahoney, was tried for the murder of Howard Mahoney in the Addison County Court and was convicted by jury of the crime of manslaughter in March, 1962. She is presently serving a sentence of not less than 12 nor more than 15 years at the Women’s Reformatory in Rutland. Howard Mahoney left no issue, and was survived by his wife and his father and mother. His father, Mark Mahoney, was appointed administrator of his estate which at the present time amounts to $3,885.89. After due notice and hearing, the Probate Court for the District of Franklin entered a judgment order decreeing the residue of the Estate of Howard Mahoney, in equal shares, to the father and mother of the decedent. An appeal from the judgment order and decree has been taken here by the appellant widow. The cause now before us is here on a direct appeal from the Probate Court. Findings of fact were made below from which it appears that the judgment of the probate court decreeing the estate of Howard Mahoney to his parents, rather than to his widow, was based upon a finding of the felonious killing of her husband by Mrs. Mahoney. The Probate Court used the record of the conviction of the appellant for manslaughter for its determination that the appellant had feloniously killed her husband. In Vermont, an indictment for murder can result in a jury conviction on either voluntary or involuntary manslaughter. The legislature has provided the sentences that may be passed upon a person convicted of manslaughter, but provides no definition of that offense, nor any statutory distinction between voluntary and involuntary manslaughter.
View caseSimon Stern and his wife arrange for sperm retrieval before his death. After Simon dies intestate the wife conceives and bears twins. The probate court rules that the twins are Simon's heirs under the statute of descent and distribution and are entitled to share in his estate.
In January 1993, Lauren Woodward and her husband Warren Woodward, who had been married for approximately three and one-half years and remained childless, learned that Warren had leukemia. The couple arranged for a quantity of Warren's semen to be medically withdrawn and preserved through a process known as sperm banking before he began treatment. Warren underwent an unsuccessful bone marrow transplant and died in October 1993, after which Lauren was appointed administratrix of his estate. In October 1995, Lauren gave birth to twin girls who had been conceived through artificial insemination using Warren's preserved semen. In January 1996, she applied to the Social Security Administration for child's insurance benefits under 42 U.S.C. § 402(d)(1) and mother's benefits under 42 U.S.C. § 402(g)(1). The SSA denied the claims on the ground that the twins were not the husband's children within the meaning of the Act. In February 1996, while pursuing appeals from the SSA denial, Lauren filed a complaint for correction of birth record in the Probate and Family Court against the clerk of the city of Beverly, seeking to add Warren as the father on the twins' birth certificates. In October 1996, a Probate Court judge entered a judgment of paternity based on stipulations of voluntary acknowledgment of parentage and ordered the birth certificates amended to declare Warren the children's father. An administrative law judge conducted a de novo hearing. The judge concluded that the children did not qualify for benefits because they were not entitled to inherit from Warren under Massachusetts intestacy and paternity laws. The SSA appeals council affirmed that decision. Lauren appealed to the United States District Court for the District of Massachusetts. The court certified the question regarding the inheritance rights of posthumously conceived children under Massachusetts intestacy law to the Supreme Judicial Court because the parties agreed that a determination under state law was dispositive and no directly applicable precedent existed.
View caseThe property passes according to the state's statute of descent and distribution. Heirs or next of kin identified by the statute receive the net probate estate. Title transfers by operation of law.
Supporting sources
Modern statutes apply a single scheme to both types of property. At common law real property descended to heirs and personal property was distributed to next of kin. Today the same persons usually take both.
Any property not effectively disposed of by will passes under the statute of descent and distribution. The probate court determines the intestate share after paying creditors and administration expenses.
Yes. Modern statutes of descent and distribution give the surviving spouse a share of the net probate estate. Common-law dower and curtesy have been abolished or modified in nearly every state.
…spite of his crime. The reasoning for so deciding is that devolution of the property of a decedent is controlled entirely by the statutes of descent and distribution; further, that denial of the inheritance to the slayer because of his crime would be imposing an additional punishment for his crime not provided by statute, and would violate the…