Disqualifications [Of Inheritance] PDF

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New York Trust and Estates EPTL Lecture...

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Trust and Estates Notes Spring 2020 DISQUALIFICATIONS [Of Inheritance] Disqualification of Parent §4-1.4. Disqualification of parent to take intestate share by: • Abandoning child o Abandonment: unjustified departure without consent and without intent to return • Neglecting/abusing child • Termination of parental rights (Parent was subject of a child abuse proceeding that resulted in an order terminating the parental rights or the court finds that the parent failed to obey a court order to restore the parent/ child relationship) o Includes when rights were suspended o EXCEPTION: FRAUD- when a biological parent places his/her kid up for adoption based on a fraudulent promise made to them by another that that other person will take care of child, or other fraud or deceit by an adoptive agency…then the biological parent will not be disqualified. • Summary- Failure to support or abandonment of the child!parent is disqualified to take intestate. A parent cannot inherit from a child if they failed or refused to support the child, abandoned the child while the child was under the age of 21, whether the child dies before the age of 21. If the parent is disqualified, the child’s estate is distributed as though the parent predeceased the child. o (i.e., If there are two parents, one disqualified and one qualified, the money would go to the qualified parent. If the disqualified parent is the only parent alive, then goes to the issue of the parent ! you just skip over the disqualified parent under intestacy distribution) DISQUALIFICATION OF SURVIVING SPOUSE

§5-1.2. Disqualification as surviving spouse by: [if spouse does any of these things, then he/she will be disqualified & not be a distributee under intestatcy & cannot elect against the will] • 1) Divorce, annulment, or judgment dissolving marriage, recognized as valid under NY law, which is in effect when the deceased spouse died • 2) Marriage is void as incestuous, bigamous, or a prohibited marriage under DRL • 3) Surviving spouse went out of state to get a divorce, annulment, or judgment dissolving marriage ex parte, NOT valid under NY law o So penalize the surviving spouse who got the invalid divorce. Estoppel theory. o Note: surviving spouse wouldn’t be disqualified if it was the deceased spouse who did this • 4) Final decree/judgment of separation (valid under NY law) was rendered against surviving spouse, and such decree/judgment was in effect when the deceased spouse died. • 5) The surviving spouse abandoned the decedent spouse, and such abandonment continued until time of death o Abandonment: unjustified departure without consent and without intent to return • 6) A spouse who, having the duty to support the other spouse, failed or refused to provide for such spouse though he/she had the means or ability to do so, UNLESS such marital duty was resumed and continued until the death of the spouse having the need of support. • Note: §5-1.4 says that if you are divorced and you named your husband as the beneficiary on your life insurance policy or pension plan, then he is no longer going to be a beneficiary. 5-1.4 disqualifies you from things you’ve been given gratuitously. • 5-1.2 Disqualifies you from things you are granted by default • These two statutes have DIFFERENT TRIGGERS...