What Constitutes Descent in Law?
Descent, in legal terms, refers to the transfer of ownership of real estate from an ancestor to their descendants. This relationship frames a complex web of property and individual rights – rights that go far beyond simple ownership, extending to use, benefit, and transferability. Like so many other legal terms, "descent" can be traced back to the Latin term "descendere," which means a chain of offspring, in this case, a chain of inheritors. One of the most important aspects of the term "descent" is its utility in estate planning and real property examinations.
In estate planning , this generally refers to the right of an heir or beneficiary to receive the property of an ancestor – your right to inherit the wealth or property of your predecessors. For example, your children have a right to your entire estate under the laws of descent, unless you provide otherwise in a valid will.
Similarly, in real estate, descent is important because it defines the methods by which real property is passed down from the owner(s) to successors after the owner’s death, whether through the laws of descents (intestate succession), through a will or by proper Conveyance after the death of the owner(s) – and just how that property will pass to heirs.
A Historical Look at Descent
Descent was not always the favored method of inheritance. Feudal systems tend to focus on the hierarchy. It is the general principal of primogeniture, which dictates that goods and title should go to the first born child. The idea of descent developed as the needs and societal structure began to change. During the middle ages, the nobility determined the descent of property for the purpose of succession. After the nobles slowly lost their power in favor of a central government, the system of descent was converted from one of lordship to one of kinship. Even today, most legal systems are based on the idea of descent.
In the beginning, if one died without a last will and testament, distributions were made to the heirs at law, which included a surviving spouse, blood relatives and adopted children. Generally, two sets of law governed descent, which were the statutes of descent and the common law. The statutes varied by jurisdiction and were dependent upon local customs. The common law system was not so rigid. The common law property (lands) reasoned that property should descend to the heir at law, which was normally the blood relation, as opposed to the heir of the person named under the will. In England, the property descended according to the custom of gavelkind. Gavelkind allowed female descendants to inherit. An estate tail meant that if the property owner had no children, the property would go to the closest male relative. However, the owner could also choose to limit the inheritance by creating a fee simple conditional with remainder over.
Over time, the laws of descent evolved as people saw the flaws in the system and as more and more people began to enter the socio-economic system. As a response, laws regarding descent and distribution became more specific. The statutes of descent were incorporated into the common law. Wills are now closely scrutinized because they are supposed to reflect the desires of the testator. Because of this, the rules of courts regarding the law of descent have become more critical and all questions of wills are resolved via the statute of descent.
The Distinction Between Descent and Distribution
Descent refers to the transfer of property at death through the operation of law. Every state has a law of descent that determines how land is transferred if it is not disposed of by will. Deeds to Connecticut real estate frequently contain after acquired property clauses. For example: "The grantor conveys all his interest in real estate that he may own at the time of his death." Such a clause is probably superfluous, but in some states may prevent the operation of law from the grantor to the grantee.
Distribution refers to the transfer of decedent’s assets under a will or through intestacy. Where the law of descent determines who inherits property, the law of distribution determines what happens once the heirs have been identified. In a will the distribution clause instructs the executor or administrator how to convey the assets in his or her hands. Under the Connecticut probate code, assets are distributed to the heirs in a specified order.
The legal basis of Descent
Descent is governed by the laws pertaining to the intestacy and descent of property located within relevant jurisdictions. As a consequence, a variety of legal rules and statutes prevail to establish a mechanism for transfer of the decedent’s probate property. Each jurisdiction will contain its own statutory provisions or alternatively adopt by reference to other statutes in the state that govern transfers of property on descent. These statutes often contain explicit rules governing the lineage in which a specific decedent’s property will be inherited prior to the decedent’s death. Such statutes are known as statutes of descent.
Statutes of descent have varied and evolved in complexity throughout the United States and as between jurisdictions within a single state. A number of states ascribe to the Uniform Intestacy Code and have adopted by reference the provisions contained therein. For example, the Uniform Intestacy Code provides the following distribution of a decedent’s estate: (1) if there are no surviving decedents of the decedent, to the decedent’s parent; (2) if there is a surviving parent, to the decedent’s parents in equal shares or to one surviving parent if one has predeceased the decedent; (3) if there are surviving siblings, 50% to surviving siblings and one half in place of an equally related sibling, to the decedent’s surviving siblings; and (4) if there are other relatives, such as grandparents, to the decedent’s other relatives.
Signing a will or trust can also have an effect in the manner in which a decedent’s estate is inherited. For persons that are domiciled in states that permit the execution of wills, such will can direct the transfer of that person’s real property to beneficiaries of their choosing without the need to abide by the rules of descent.
Effects of Descent on Estate Planning
The concept of descent is crucial when it comes to estate planning. For example, descent is the process by which title to property is passed on by operation of law. This refers to the statutory and customary method in which property is inherited. In the absence of a will, the intestacy laws of the state where the deceased died will govern descent.
The laws of descent vary in all 50 states. In Minnesota, the estate of a decedent with no will is distributed according to the terms and priority outlined in the Probate Code Section 524.2-1.
Section 524.2-1 provides that the entire estate goes to the surviving spouse if there are no descendants (children or grandchildren) or parents. If, however, the deceased had children or grandchildren, the property will be distributed in the following manner:
If a decedent had just a modest estate, the intestacy laws still apply. In such a situation, the decedent will be able to pass on property to individuals without involving the probate court . In most states, there are simplified procedures available for estates with a value less than a certain amount; the threshold amount varies from state to state. Such simplified procedures may include making the surviving spouse the administrator of the estate instead of the personal representative. It may also involve preparing a written affidavit that states the assets, liabilities and the appraised value of the real estate.
Descent rules apply not only when death occurs but also during lifetime transfers. Because many people transfer assets during life, especially to minimize estate tax exposure, the law has assumed that such a transfer should be enforceable against the person who receives the property. An exception to this general principle is that a descendant’s interest in certain property is vested at the moment the person is born. In addition, the will of the person who transferred the property can override or affect the rules of descent and devise.
Applicable Case Law Regarding Descent
Several key legal cases show how attorneys view the terms descent and descent.
Case 1: In re Brown, 751 A.2d 1010 (2000)
The issues addressed by the court in this case are very similar to the issues addressed in In the Matter of the Estate of Brody, below. In this case, the issue was whether the decedent’s children could petition a court to invalidate a will because the will resulted from undue influence of the decedent’s second wife and the wife’s daughter. The court refused to invalidate both the will and revocable trust. In doing so, it pointed to many things that the wife had told the decedent over the course of their marriage that showed that even though the decedent had a children from a previous marriage, he had not intended to leave any of his assets to them. Notably, the wife had said that she did not want her objection to the estate documents to sound like the "sour grapes of an estranged spouse." The court thus found that the documents were valid and that the wife’s objections should be dismissed.
Case 2: In the Matter of the Estate of Brody
While the case above involved a weeding out of extraneous facts into a conclusion, Estate of Brody is one of the most famous cases in cases involving descent. In Brody, the couple met, got married, and then divorced.
After the divorce, the decedent created a new trust, from which his children would inherit all of his assets. In addition, he executed a will, which stated that for the first year after his death, all of his assets would go to his children, then to his ex-wife, then to his ex-wife’s children, then to her grandchildren, and finally to her sister. His ex-wife was not happy with the will, but she never formally petitioned the court for any changes. Over a period of 13 years, the ex-wife asked the decedent to remove the children as beneficiaries of the trust, and he did so nine times. She also asked him to name her and her children as beneficiaries of the trust, and he did not. When the decedent died, the ex-wife filed objections to his trust saying that the documents were invalid because her ex-husband had been compelled to sign them under her duress. The probate court agreed with the ex-wife and found the documents were invalid, and the Supreme Court upheld the ruling. In his dissent, however, Judge John L. Segal wrote that the witnesses all documented that the decedent certainly understood the documents he was executing and the implications they had. In addition, there was no indication in the record that the decedent lacked testamentary capacity. The only thing the majority submitted to show that the grantors were the product of undue influence was the fact that the decedent’s children received all of his assets. In addition, the majority pointed out that the kids got no more than the decedent had designated for them: a large share of his estate. The portion that would have gone to the kids’ mother were much smaller. Essentially, the majority affirmed the idea that simply because one beneficiary stands to gain more than another, that alone does not indicate undue influence.
Frequently Encountered Issues and Misconceptions
In practical application, the word "descent" often leads to confusion and misunderstanding. This is because in common everyday conversation we use the words "descended from" and "descendant of" interchangeably with the words "heir," "heir at law," and "heirship." The true definition, however, is as set out above. This is not merely semantical, however. In some situations it is crucial to use the precise legal terms. Descendants can be heirs, but not all heirs are descendants.
For instance, where one deceased person has left a will leaving his or her entire estate to his or her descendants, and the second dies before the first but left no will, then the descendants (i.e., children and grandchildren) of the second deceased person inherit and succeed to the property of the first one. Their inheritance rights are governed by the laws of descent. With some exceptions involving certain gifts to or benefits for minors, life insurance, and so on, in Florida, if someone dies without a will, his or her entire estate goes to his or her heirs. This is called being intestate. When this happens, the law dictates how to determine the distribution of the estate among the heirs.
If you are leaving property to your descendants , you want to use language in your will to ensure that your gift to your descendants applies to your child or children and their descendants, but not only to your child or children. There are some exceptions when an heir can be disqualified if, for example, the heir has been convicted of a felony or if the heir has abandoned the deceased under circumstances that may, in some states, terminate inheritance rights. In Florida, for instance, if, after July 1, 1976, a parent has deserted or abandoned a minor child or has had parental rights terminated by a court of competent jurisdiction, the parental rights of such person are not subject to restoration for the purpose of terminating such person’s rights of inheritance while this provision is in effect (750.174, Florida Statutes).
What this means, simply, is that a child who abandons his or her parent after a specified date cannot inherit from or through that parent while that statute is in effect. It is advisable that you consult an attorney before preparing your Will to address any legal pitfalls or traps that might be involved regarding inheritance rights.