PORTFOLIO

Family, Kinship, Descent, and Distribution (Portfolio 858)

Tax Management Portfolio, Family, Kinship, Descent, and Distribution, No. 858, examines in detail the interaction of estate planning and family, kinship, descent, and distribution.

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DESCRIPTION

Tax Management Portfolio, Family, Kinship, Descent, and Distribution, No. 858, examines in detail the interaction of estate planning and family, kinship, descent, and distribution. The focus of the portfolio is on the numerous relationships that fit under the standard descriptions of status, such as child, descendant, and spouse. Whether these terms are being used in a will, trust, or other dispositive instrument, the changing nature of relationships is giving rise to vital issues that the estate planner must take into account. Facile, comfortable assumptions can no longer be made as to who is entitled to property based on status. For example, rights as an heir, devisee, or trust beneficiary may turn on status as a “child,” “descendant,” or “spouse.” Who qualifies as such is considerably less certain and more disputable than was traditionally the case.
There are a number of reasons for this. The law has not kept up with technological developments, such as assisted reproduction techniques. At the same time, certain state laws have expanded traditional meanings of terms like “spouse” and/or have recognized analogous relationships. Furthermore, the mobility of persons and property, along with the increasing abandonment of cross-cultural and cross-religious barriers to marriage, have resulted in multijurisdictional issues that have accentuated the need to understand conflict of laws rules in determining which law will determine status and concomitant rights. In addition to cross-border issues, the radical changes over time in the rights of various persons, notably adoptees, require the consideration of conflict of laws from a temporal standpoint. For example, trusts established under one set of rules may subsequently operate against a background of a new set of rules. In this scenario, the issue will be which set of rules is controlling.
Finally, state laws are not necessarily determinative for tax purposes. Federal tax law, in particular, is governed in a number of instances by its own unique rules concerning a variety of relationships. The most striking example of this is the generation-skipping transfer tax. Significantly, however, even within the context of federal tax law, these rules are not consistently drawn.
Estate planning is prospective in nature. It impacts current relatives who are intended beneficiaries, as well as future generations. In drafting plans, terminology to describe status or define a class should be used with caution and only after considering the parameters of the terms' meanings now and what the terms are likely to mean in the future. Even when there is great flexibility in drafting available, the issues must be understood so that they can be properly addressed in the governing instruments. If not, the seeds will be sown for litigation. This portfolio identifies and analyzes in depth the non-tax and tax law as it is, the relevant issues, especially the emerging ones, and the proper drafting and planning response.
This Portfolio may be cited as Schoenblum, 858 T.M., Family, Kinship, Descent, and Distribution.


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AUTHORS

PROFESSOR JEFFREY A. SCHOENBLUM
Jeffrey A. Schoenblum, A.B., Johns Hopkins University (1970); J.D., Harvard Law School (1973); Centennial Professor, Vanderbilt University Law School (1977–present); Advisor, A.L.I., Restatement (Third) of Property: Wills and Other Donative Transfers; Academician, International Academy of Estate and Trust Law; Academic Fellow, American College of Trust and Estate Counsel; author, Multistate and Multinational Estate Planning, 2 vols. (CCH 2010); author, 2011 Multistate Guide to Estate Planning (CCH 2010); author, 2011 Multistate Guide to Trusts and Trust Administration (CCH 2010); author, Page on the Law of Wills: Annual Supplement (LEXIS); author, “Governing Law Clauses for Trusts,” 44 U. Miami Heckerling Inst. on Est. Plan. ch. 14 (2010); author, “Taxation, the State, and Community,” 23:2 Soc. Phil. & Pol’y 210 (2006), and also published in Taxation, Economic Prosperity, and Distributive Justice (Cambridge University Press); Author, “In Search of a Unifying Principle for Article V of the Uniform Trust Code: A Response to Professor Danforth,” 27 Cardozo L. Rev. 2609 (2006); author, “Preface, Symposium: International Legal Dimensions of Art and Cultural Property,” 38 Vand. J. Transnat'l L. 921 (2005); author, 851 T.M., U.S. Estate and Gift Tax Treaties; author, “Trusts, Settlors, and Spouses — A Cross-Jurisdictional Analysis of Property and Marital Rights,” Tr. & Trustees (June 2003); author, “Myth of Ownership/Myth of Government,” 22 Va. Tax. Rev. 555 (2003); author, “Estate and Gift Tax Treatment of Diplomatic and Consular Officials,” 31 Tax Mgmt. Int'l J. 355 (2002); author, “Conflict of Law under the New Uniform trust Code,” 3 Trusts E Àttavita Fiduciarie 16 (2001); author, “Fiduciary Duty and the Direct-Derivative Distinction in the Takeover/Merger Context” in L'Alambicco Del Comparatista: Amministratori: Fiduciari —Ma Di Chi? (2001); editor, A Guide to International Estate Planning (ABA 2000); author, “The Role of Legal Doctrine in the Decline of the Islamic Wakf: A Comparison with the Trust,” 32 Vand. J. Transnat'l L. 1191 (1999); author, “Preface, Symposium: The Rise of the International Trust,” 32 Vand. J. Transnat'l L. 519 (1999); author, “Conflict of Laws; Trusts and Civil Law; Situs Wills — The American Perspective” in International Estate Planning (1996); author, “Preface” in Global Estate Planning (Kluwer 1995); author, “The Use of Offshore Trusts by Residents or Nationals of Civil Law Jurisdictions” and “Property Ownership and Succession Planning for the Foreign National: Conflicts of Law; Recognition of Trusts and Testamentary Dispositions; Marital Property Rights and Forced Heirship” in International Wealth Transfer Techniques —1990s and Beyond (1995); co-editor, International Estate Planning (ABA 1991) (with D. Kozusko); author, “The Adaptation of the Asset Protection Trust for Use by the Multinational Corporation — The American Perspective” in Commercial Aspects of Trusts and Fiduciary Obligations (Clarendon 1992).

TABLE OF CONTENTS

Portfolio 858-1st: Family, Kinship, Descent and Distribution

Portfolio Description

Authors

Technical Advisors

Description

Detailed Analysis

I. Introduction

II. Descent and Distribution

A. Patterns of Descent and Distribution

1. The Spouse

2. Children and Other Descendants

3. Ancestors and Collateral Relatives

4. Beyond the Grandparent Parentelae

B. The Importance of Statutes of Descent and Distribution to Estate Planning

1. Standing to Contest a Will

2. Ability to Serve as a Disinterested Witness

3. Invalid or Failed Devise

4. Meaning of Terms Describing Relationship in a Dispositive Instrument

5. Template for Determining Recipients of Other Benefits

6. Tax Consequences of Settlement Agreements

a. Federal

b. State

III. Children and Siblings

A. Introduction

B. Persons Related to an Ancestor Through More than One Bloodline

1. The Problem and How It May Arise

2. Possible Solutions

a. Option 1 - Inheritance Through Both Lines

b. Option 2 - Inheritance Through Original Line

c. Option 3 - Inheritance Based on Most Currently Achieved Status

d. Option 4 - Inheritance Through Line that Yields the Lesser Share

e. Option 5 - Inheritance Through Line that Yields the Greater Share

f. Option 6 - Inheritance Based on a Determination of Decedent's Intent

3. Special Issues Involving Children of Assisted Reproduction Techniques

4. Collateral Relatives

a. Precedent Rejecting Inheritance Through Two Lines

b. Precedent Permitting Inheritance Through Two Lines

5. Drafting Considerations and Recommendations

C. Adopted Persons

1. Legally Adopted Persons Under Laws of Descent and Distribution

a. Full Integration into the Adoptive Bloodline and Cut-Off from the Natural Bloodline

b. Full Integration into the Adoptive Bloodline and Continued Inclusion in the Natural Bloodline

c. Multiple Adoptions

d. Re-Adoptions

(1) Rights with Respect to Prior Adoptive Families After Re-Adoption

(2) Re-Adoption Following a Foreign Adoption

(3) Recognition of a Foreign Adoption when There Is No Re-Adoption

e. Termination of Adoption or the Adoptive Process

f. Timing, Statutory Revision, and Rights of Inheritance of Adopted Child

g. Adoption After Death of Natural Parents

h. Identification of the Natural Relatives

2. Stepparent Adoption

a. Does Adoption by a Stepparent or Cohabitant Sever the Relationship with the Natural Parents Married to or Cohabiting with the Stepparent?

b. Does Adoption by the Stepparent Sever the Relationship with the Other Natural Parent?

c. Can the Natural Parent and the Natural Parent's Relatives Inherit from the Adoptee?

d. Can the Adoptee Inherit from the Other Natural Parent's Relatives?

3. Adult Adoption

a. Reasons for Adult Adoption

b. Review of the Diverse Approaches to Adult Adoption by the States

(1) Allowed

(2) Not Addressed

(3) Absolutely Barred

(4) Barred Because of Inheritance Purpose

(5) Barred Except with Respect to Certain Relatives

(6) Barred Except with Respect to Disabled Persons

(7) Barred Except when the Age Differential Is Substantial

(8) Allowed, but Only if Adopted Person Not a Spouse of the Adopting Parent

(9) Barred if Used as a Substitute for Marriage or to Facilitate Frowned-Upon Sexual Relationships

(10) Barred if Adoptee Did Not Live with Adoptive Parent or Parents During Minority

(11) Barred to the Extent of Taking Through an Adoptive Parent

(12) Barred if Too Close in Time to Death or Distribution

(13) Barred Without Proper Consents

(14) Barred Under Certain Circumstances if Adopting Parent Is Married

(15) Barred if Multiple Contemporaneous Adoptions

c. Process Issues Regarding Challenges to Adult Adoption

(1) Timeliness of Challenge

(2) Jurisdictional and Constitutional Bases

(a) In General

(b) Federal Court Jurisdiction

(3) Standing to Challenge

(4) Grounds for a Challenge

(a) Lack of Written Consent of the Adult Adoptee

(b) Failure to Satisfy Residence Requirements

(c) Adoptive Parent and Adoptee Too Close in Age

(d) Lack of Agreement to a “Parent-Child” Relationship

(e) Lack of Consent of the Spouse of the Adopting Parent or the Spouse of the Adoptee

(f) Unclean Hands

(5) Proof Problems

(6) Consequences of Adoption Out of Natural Family

(7) Retroactive Effect of Adoption Statute

(8) Consequence of Having Already Been Named in Instrument

(9) Considerations and Recommendations Regarding Drafting

4. Equitable Adoption

a. In General

b. The Theoretical Basis of Equitable Adoption

(1) Express Contract

(2) Implied Contract

(3) Administrative Glitch

(4) Manifestation of Intention to Adopt

(5) Implied Contract with the Child

(6) Equity

(7) Status Comparable to Formally Adopted Child but for Absence of a Formal Order

c. Standard of Proof

d. From Whom Can the Adoptee Inherit?

e. The Right of Adoptive Parents and Their Relatives and Natural Parents and Relatives to Inherit from the Child

f. “Fictive Kinships”

g. Equitable Adult Adoption

h. Equitable Adoption by Unmarried Couples

i. Federal Tax Considerations

j. State Tax Considerations

k. Foster Child

D. Children Created via Assisted Reproductive Techniques

1. Third Party Contributes Sperm

a. Donation to Sperm Bank Anonymously

b. When Sperm Donation Is Not Anonymous

2. Third Party Contributes Egg

3. Third Party Contributes Womb

a. The Tests of Motherhood

(1) Genetic Basis

(2) The “Intent” of the Parties

(3) The Totality of Circumstances

(4) Gestational Mother as Legal Mother

b. Mistaken Placement of Embryo

4. Third Parties Contribute Sperm and Egg

5. Third Parties Contribute Sperm and Womb

6. Third Parties Contribute Egg and Womb

7. Third Parties Contribute Sperm, Egg, and Womb

E. Children Conceived Posthumously Through ARTs

1. Introduction

2. The Case Law

a. Woodward v. Comr.

b. Khabbaz v. Comr.

c. Finley v. Astrue

d. In re Martin B

e. Stephen v. Comr.

f. Gillett-Netting v. Barnhart

g. In re Estate of Kolacy

3. Restatement (Third) of Property

4. Uniform Laws

a. UPA § 707

b. UPC § 2-120(k)

5. State Statutes

a. Cal. Prob. Code § 249.5

b. Fla. Stat. § 742.17(4)

c. La. Rev. Stat. Ann. § 9:391.1(A)

d. Va. Code Ann. § 20-158(B)

6. Drafting Considerations

F. Stepchildren

1. General Rule Excluding Stepchildren

2. Exceptions in the Law to the General Exclusion of Stepchildren

a. Exception when Decedent Is Not Survived by Heirs

(1) Maryland's Statutory Solution

(2) Florida's Statutory Solution

(3) Ohio's Statutory Solution

(4) California's Statutory Solution

(5) Inheritance by Issue of Stepchild

b. Inheritance of Stepchild and Issue from and Through Natural and Stepparent Bloodline

(1) California's Statutory Solution

(2) Other States

3. Inheritance by and Through Stepparent from Stepchild

4. Rights of a Stepchild or Steprelative Under a Dispositive Instrument Using Class Terminology

a. Reference to Class when There Is Only One Non-Steprelative

b. Reference Elsewhere in Instrument to Stepchild as a “Child”

c. Erroneous Description of Stepchildren as Having Status of Children of Designated Person

d. Post-Execution Birth of Children Ending Potential Claims of Stepchildren

e. Grammatical Error that Results in Inheritance of Stepchildren at the Expense of Children

f. Resistance of Courts Despite Provision to the Contrary

5. Consequences of Death of Surviving Spouse Who Is Survived by Her Own Descendants

a. In General

b. Stepchild as Alternative Taker Under Dispositive Instrument Followed by a Divorce of the Parent and the Stepparent

6. The Application of the Antilapse Statute to Stepchildren

7. Stepchildren Under Wrongful Death and Worker's Compensation Legislation

8. Drafting Recommendations and Considerations

G. Posthumous Children Conceived Before the Death of Either Parent

1. The General Problem and the Increasing Complexities Created by Technologies

2. The Common Law Rule

a. The General Principle in Favor of the Posthumous Child

(1) Statement of the Common Law Rule

(2) The 280-Day Rebuttable Presumption

(3) Establishing the Paternity of the Unacknowledged, Out-of-Wedlock Posthumous Child

b. Application of the Rule when It “Benefits” the Posthumous Child

c. Required Period of Survivorship of Posthumous Child

d. Presumption of Husband's Paternity

e. Protection of the Unborn Child's Interests

f. Application of the Common Law Rule to Other Modes of Wealth Transfer

g. Entitlement of Posthumous Child to Benefits for Period Between Decedent's Death and Posthumous Child's Birth

h. The Posthumous Child and Pretermitted Heirship

3. Modern-Day Statutes

a. Does the Statute Only Address Intestacy?

b. Do Statutes that Are Not Limited to Intestacy Only Address Wills?

c. Does the Statute Address Future Interests?

d. Does the Law Apply Only to Children of the Decedent?

e. Must the Person Born Posthumously Survive for a Specified Period of Time?

f. Does the Posthumous Child Have to Be Born Within a Specified Period of Time?

g. Does the Statute Apply to Children Who Are the Product of ARTs?

h. Does the Posthumous Child Inherit as a Member of the Class?

i. Who Contributes to the Posthumous Child's Share when the Decedent Dies Testate?

4. The Posthumous Child's Rights in Light of Language in the Dispositive Instrument

5. Revocation of a Will by Birth of a Child and the Posthumous Child

6. Children in the Process of Being Adopted

7. The Aborted Posthumous Child

8. Federal Tax Consequences

9. Drafting Considerations and Recommendations

H. Half-Bloods

1. Introduction

2. Defining the Relationship

3. The Inheritance Rights of Half-Bloods

4. The Share of the Half-Blood Under the Law

a. The Traditional View

b. The Majority View

(1) The Impact of Other Statutes

(2) Non-Reciprocal Rights of Half-Bloods

c. The Half Share for the Half-Blood Approach

d. The Qualified Exclusion of Half-Bloods

e. The Half-Blood Rule in the Context of Collateral Relatives Beyond the Parent Parentela

f. The Half-Blood Rule and Representation

5. Interpretive Questions Under Wills and Other Dispositive Instruments

6. The Distinctive Treatment of Half-Bloods with Respect to Ancestral Property

a. Introduction

b. Property Subject to the Statute

c. Washington State's Special Statute

(1) Extension of the Rule to Kindred of the Ancestor

(2) The Impact of Adoption

d. Who Is an Ancestor?

7. Drafting Considerations and Recommendations

I. Children Born Out-of-Wedlock

1. In General

2. The Unconstitutionality of the Common Law Rule

a. Trimble v. Gordon

b. The Constitutionality of State Restrictions on the Time Limit Within Which to Establish Paternity

c. Retroactive Application of Trimble v. Gordon

3. Standing to Establish Paternity

4. Burden of Proof for Establishing Paternity

5. The UPA Model

6. Equitable Doctrines of Parentage

a. Equitable Legitimation

b. Equitable Parent Doctrine

c. Equitable Estoppel

7. When Is the Legitimated Child Born?

8. The Child Born Out-of-Wedlock and Adoption

a. Inheritance of a Child Born Out-of-Wedlock from Natural Parent After Adoption

b. The Right of the Putative Father to Object to an Adoption

9. Rights of Parents, Especially Father, to Inherit

10. The Legitimacy Presumption in the Case of Marriage

a. The Basic Rule

b. Invalid Marriages

c. Overcoming the Presumption

11. Are the Paternity Provisions of State Law in Pari Materia with the Intestacy Law?

12. Birth Certificate

13. Collateral Estoppel and Res Judicata

14. Conflict of Laws and the Parent-Child Relationship

15. Does the Personal Representative Have a Duty to Notify Children Born Out-of-Wedlock?

16. A Prototypical Case

a. Facts

b. Legal Analysis

(1) Margaret Dies with a Will

(2) Margaret Dies Without a Will

(3) Arthur Dies with a Will

(4) Arthur Dies Without a Will

(5) Elena Dies with a Will

(6) Elena Dies Without a Will

(7) Peter Dies with a Will

(8) Peter Dies Without a Will

(9) Max Dies with a Will

(10) Max Dies Without a Will

J. Disqualification as a Parent Based on Conduct

1. UPC § 2-114 (2008 Amendment)

2. UPC § 2-114(c) (Pre-2008 Amendment)

3. Inheritance Rights of Persons Inheriting Through a Disqualified Parent

IV. Spouses, Domestic Partners, and the Status of Persons of Disputed Gender

A. Introduction

1. Significance of Spousal Status in Wealth Transfer Matters

2. Significance of Attorney Making Proper Determination of Status

3. Changing Definition of Spouse and Recognition of Alternatives with Comparable Rights

B. Marital Status Without Ceremonial Marriage

1. Common Law Marriage

a. Origins

b. Burden of Proof

c. Elements that Have to Be Proved

d. Common Law Marriage Prescribed by Statute

(1) In General

(2) New Hampshire's Unique Statute

e. The Planning Perspective

(1) Determining Whether There Is a Partnership

(2) Terminating the Relationship

f. Posthumous Proof of Marriage

g. Recognition of a Common Law Marriage Contracted Out of State

2. Posthumous Marriage

C. Same-Sex Marriages, Civil Unions, Domestic Partnerships, and Reciprocal Beneficiaries

1. Introduction

2. Procedure for Establishing the Relationship

3. What Rights Are Accorded Parties to a Civil Union, Domestic Partnership, and Reciprocal Beneficiary Relationship?

4. Residency Requirements for Qualification in State

5. Only One Legally Recognized Relationship at a Time

6. Recognition of Same-Sex Marriage but Not Civil Unions

7. Recognition of Same-Sex Civil Unions but Not Same-Sex Marriage

8. Nonrecognition of Civil Unions in Domestic Partnership States and Vice Versa

9. Can Heterosexual Couples Who Are Family Members Utilize Civil Union Provisions?

10. How Is the Civil Union Partnership Terminated?

11. If a State Will Recognize Out-of-State Same-Sex Marriage, Will an Out-of-State Same-Sex Civil Union Be Treated Likewise?

12. If Two States Have “Civil Union” Statutes, Must One State Recognize a Civil Union Recognized in the Other?

13. If No Formalized Marriage or Civil Union Relationship Exists, Is the Survivor of a Same-Sex Relationship Entitled to Inheritance Rights?

D. Polygamy: Bigamy and Other Forms of Multiple Marriage

1. The Different Types of Polygamy

2. Non-Recognition of Such Relationships in the United States

3. Why the Estate Planner Needs to Know About Polygamy

4. Recognition of Foreign Polygamous Marriages

5. Particular Issues Relating to Inheritance and Taxation

6. Estoppel of the Legal Spouse

7. Rights of the “Putative Spouse”

a. Non-Tax Aspects

b. Marital Deduction Considerations

E. The Consequences of Abandonment and Desertion

F. Void Versus Voidable Marriage

G. Status of Persons of Disputed Gender

1. Transgendered Persons

a. The Authorities

b. Tentative Conclusions as to Status of the Law

(1) The Requirement of Surgery

(2) Indicia in Addition to Surgery

(3) Recognition of Changed Status on Documents

(4) Recognition of Judgment from Another Jurisdiction

(5) Same-Sex Marriage by Transgendered Persons

2. Intersexed Persons

H. Proxy Marriage

1. Overview

2. Historical Basis for Proxy Marriage

3. The Current Status of Proxy Marriage

4. Conflict of Laws Aspects

5. Standing to Challenge a Proxy Marriage

I. De Facto Marriage

J. Marriages and Divorces Under Religious Law

K. Cohabitants

1. Refusal to Recognize Rights

2. Recognition Based on Express or Implied Contract

3. Remedies Apart from Damages for Breach of Contract

4. Evolution Toward Quasi-Common Law Marriage

5. The Departure from the “Meretricious Relationship” Caveat

6. The ALI's Endorsement of Cohabitation as a Status Akin to Marriage

7. The Conflict of Interest Between the Surviving Cohabitant and the Decedent's Family

L. Drafting when the Client Is Definitely and Traditionally Married

1. Defining Who the Spouse Is

2. Anticipating the Deterioration of the Marital Relationship

M. Federal Tax Aspects of Marital Status

1. Common Law and Other Non-Solemnized Forms of Marriage

a. General Rule: State Law Controls

b. Common Law Marriage

2. DOMA

3. Defective Ceremonial Marriage

N. Federal Tax Aspects of Annulment and Divorce

1. Interlocutory Decrees

a. What Constitutes a Divorce?

b. Limited Divorce

c. Status While Decree Is Being Appealed

2. Foreign Divorce Decrees

a. The IRS and Tax Court Position

b. The Second Circuit Position

c. Boyter v. Comr. and Migratory Divorces

V. The Meaning of Class Terms

A. Introduction

B. Heirs

1. The Traditional Distinction Between Heirs and Next-of-Kin

2. The Inclusion of Adoptees Within the Meaning of “Heirs” as Well as Other Class Terms

3. The Inclusion of a Spouse Within the Meaning of “Heirs”

4. Adoption of Transferor's Non-Technical Meaning of “Heirs”

5. Adoption in an Instrument of Meaning of “Heir” Under the Law of a Particular State

a. Specification of Law Governing Meaning of Term

b. Consequences of a General Governing Law Clause in Instrument

C. Heirs at Law

D. Heirs of the Body

1. Adoptees

2. Collateral Heirs

3. Reference to the Law of a Particular State

E. Bodily Heirs

F. Next-of-Kin

1. Disagreement by Courts over Meaning

2. Distinction in Meaning Under Statute Listing Priority for Appointment as Personal Representative and Laws of Descent and Distribution

3. Spouse as Next-of-Kin

4. Adoptees as Next-of-Kin

5. Persons Born Out-of-Wedlock as “Next-of-Kin”

6. Meaning of “Next-of-Kin” when Used in Same Clause with “Heirs”

7. Meaning of “Next-of-Kin” when a Governing Law Clause Is Used in the Instrument

G. Variations on “Next-of-Kin”

1. “Nearest of Kin”

2. “Next-of-Kin Including First and Second Cousins”

3. “Next-of-Kin, Share and Share Alike”

4. “Next-of-Kin in Equal Degree”

5. “Family or Next-of-Kin”; “Family and Next-of-Kin”

H. Issue

1. General Meaning

2. Adoptees

3. Persons Born Out-of-Wedlock

4. “Issue” Determined Per Capita or by Representation

a. In General

b. Implications for the Rule Against Perpetuities

5. Child En Ventre Sa Mere and Posthumously Conceived Children as “Issue”

6. Spouse as “Issue”

7. “Lawful Issue”

8. Application of Statute If “Issue” Not Defined in Instrument

I. Offspring

J. Children of the Blood; Issue of the Blood

K. Relatives

1. In General

2. Intent of Transferor as to Meaning

3. Spouse as “Relative”

4. In-Laws as “Relatives”

5. Consequences of Use of Plural “Relatives” When Only One Relative

6. “Relatives” as Including Collaterals Even when There Are Lineal Descendants

7. Allocation Among “Relatives” when More than One and of Differing Degree of Relationship to Transferor

8. “Related to” in the Context of the Model Rules of Professional Conduct

L. Family

1. In General

2. “Family” as Persons Cohabitating in Non-Marital Relationships

3. Shares of “Family” Members

M. Immediate Family

N. Descendants

O. Nephews and Nieces

VI. Federal Conceptions of Family and Kinship

A. In General

B. Federal Statutes Other than the Tax Law

C. Federal Tax Law

1. In General

2. Reference to State Laws or a Federal Common Law as to Meaning of Terms

3. Specific Definitions Set Forth in the Code and Treasury Regulations

a. Estate Tax and Related Provisions

(1) Section 2036(a)(1)

(2) Sections 2036(a)(2) and 672(c)

(3) Sections 6166 and 267

(4) Section 2032A

b. GST Tax

(1) Generation Assignment of Lineal Descendants of the Transferor's Grandparents

(2) Generational Assignment of the Lineal Descendants of the Grandparents of the Transferor's Spouse

(3) Generational Assignment of Those Legally Adopted and Relationships by Half-Blood

(4) Generational Assignment of the Spouse or Former Spouse of the Transferor

(5) Adoption Out of the Family of the Transferor â€" the Conflicting Authorities Regarding Generation Assignment

(6) Transfers from Ancestors in the Adoptive Line

(7) Bump-Up in Generation Under § 2651(e)

(a) In General

(b) Bump-Up for Steprelatives Under § 2651(e)

(c) Additional Contributions to a Trust and the Bump-Up

(8) Generation Assignment Rules with Respect to Collaterals

(a) In General

(b) Application of § 2651(e) Bump-Up to Collaterals

(9) Effect of Period of Survivorship and Generation Assignment

(10) Generation Assignment when Marital Deduction and Reverse QTIP Election Involved

c. Special Valuation Rules

(1) Section 2701

(a) In General

(b) The Meaning of “Member of the Family”

(c) The Meaning of “Applicable Family Member”

(d) The Definition of “Applicable Family Member” for Distribution Rights

(2) Section 2702

(3) Section 2704

VII. State Inheritance Tax Conceptions of Family and Kinship

A. In General

B. Typical Statutory Patterns

C. Issues of Construction

1. When Is a Former Wife a “Widow”?

2. Who Is the Transferee?

3. Adoption Out

4. Powers of Appointment

5. Natural Child of an Adopted Person as a Lineal Descendant

6. Natural Child of a Stepchild as a Lineal Descendant

7. Acknowledged Relationship of Parent

8. Constitutional Dimension

VIII. Conflict of Laws as to Which Jurisdiction's Law Governs in the Determination of Terms of Kinship

A. In General

B. When Real Property Is Involved

C. When Personal Property Is Involved

1. The Domicile Rule in General

2. Domicile at Execution of Instrument or Domicile at Death?

3. The Governing Law for Determining Kinship when a Trust Is Involved

D. Recognition of Same-Sex Marriage

1. Wilson v. Ake: Recognition of Status in Another State

2. Gill v. Office of Personnel Management and Perry v. Schwarzenegger: Unconstitutionality of DOMA

E. Recognition of Same-Sex Divorce

IX. Temporal Conflict of Laws and Changing Concepts of Kinship

A. In General

B. Change in the Meaning of “Children” or Other Conceptions of Kinship Between Execution and Effective Date on Death of Transferor

C. Change in Law Between Time Trust Is Established and Termination of Intermediate Estate

D. Changes in Law when Governing Law Clause Is Used

E. Situation when Type of Status Did Not Exist and Could Not Have Been Foreseen at Execution

X. Determination of Takers in Future: Per Stirpes and the Like

A. Who Takes in Place of a Deceased Descendant?

1. Introduction

2. The Per Capita Distributional Rule

B. The Standard Methodologies

1. English Per Stirpes

2. Per Capita with Representation/Modern Per Stirpes

3. Per Capita at Each Generation

4. “Equally,” “Share and Share Alike,” and Other Terms Indicating Intent as to Division of Net Estate

5. The Meaning of “Representation”

6. Which Rule Is the Preferable One?

C. Degree Counting

1. Civil Law Degree Counting

2. Variations on Civil Law Degree Counting

3. The Canon Method of Counting

D. Drafting for Collateral Relatives

1. Legal Considerations

2. Practical Drafting Considerations


WORKING PAPERS

Working Papers

Table of Worksheets

Worksheet 1 Table of Consanguinity

Worksheet 2 States Recognizing Common Law Marriage

Worksheet 3 States Using Degree Counting for Determining Heirship if Only Collateral Relatives Survive the Decedent

Worksheet 4 States Designating Stepchildren and Other Non-Relatives as Heirs

Bibliography

Books

Periodicals

1988

1995

1996

1997

1999

2001

2004

2005

2006

2007

2008

2009

2010

2012