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How are intestacy laws interpreted?





The following analysis of North Carolina’s intestate distribution scheme among the living issue of deceased heirs demonstrates a method of statutory interpretation that can be used with any state’s laws.

Relevant Facts
The following example is written according to a distribution among six surviving siblings and four deceased siblings and a net intestate estate of $500,000. It will be further assumed that each of the four deceased siblings has surviving issue (the deceased’s nieces and nephews), with the total number of nieces and nephews by deceased siblings being six.

As will be shown, the number of living children by each of these deceased siblings is not important to the ultimate calculation.

For instance, one of the deceased siblings may have three living children, with each of the remaining three deceased siblings having one living child. A second possibility is that two of the deceased siblings have two living children each, with the remaining two deceased siblings having one living child each. Assuming that none of these deceased children also have deceased children with living issue, the end result of either of these scenarios will be the same.

North Carolina’s Intestate Laws
The rules that control the distribution of intestate property in North Carolina are mainly found at Chapter 29 of the North Carolina General Statutes, which is entitled Intestate Succession. (The full language of the statute can also be opened in a new window here: N.C. Intestacy Laws). In the chosen scenario, we know there isn’t a surviving spouse, living child, issue of a deceased child, or living parent.

Beginning with subsection 29-15, we can read through and eliminate the inapplicable elements until we reach a subsection that asks about facts that match the present circumstances.

29-15. Shares of others than surviving spouse.
Those persons surviving the intestate, other than the surviving spouse, shall take that share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, as follows:

(1) If the intestate is survived by only one child or by only one lineal descendant of only one deceased child, that person shall take the entire net estate or share, but if the intestate is survived by two or more lineal descendants of only one deceased child, they shall take as provided in G.S. 29-16; or

(2) If the intestate is survived by two or more children or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, they shall take as provided in G.S. 29-16; or

(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by both parents, they shall take in equal shares, or if either parent is dead, the surviving parent shall take the entire share; or

(4) If the intestate is not survived by such children or lineal descendants or by a parent, the brothers and sisters of the intestate, and the lineal descendants of any deceased brothers or sisters, shall take as provided in G.S. 29-16; or

(5) If there is no one entitled to take under the preceding subdivisions of this section or under G.S. 29-14…

This subsection first tells us that all intestate property that isn’t given to the surviving spouse will be controlled by this subsection:

“Those persons surviving the intestate…shall take shall take that share of the net estate not distributable to the surviving spouse…”

Continuing with subsection 29-15, we can eliminate subdivision 1 because it applies to circumstances involving just one living child or one deceased child who is the ancestor of just one living descendant. Similarly, subdivision 2 is inapplicable, because it deals with multiple children or living descendants of deceased children. Finally, subdivision 3 can also be determined as inapplicable, because it pertains to circumstances with at least one living parent.

Upon reaching subdivision 4, we see that it appears to cover our facts:

“(4) If the intestate is not survived by such children or lineal descendants or by a parent, the brothers and sisters of the intestate, and the lineal descendants of any deceased brothers or sisters, shall take as provided in G.S. 29-16…”

To read it another way, this subdivision tells us “if all of the conditions in this sentence are true, then read G.S. 29-16 to learn how this property will be divided.”

29-16. Distribution among classes.
(a) Children and Their Lineal Descendants. – If the intestate is survived by lineal descendants, their respective shares in the property which they are entitled to take under G.S. 29-15 of this Chapter shall be determined in the following manner:

(1) Children. – To determine the share of each surviving child, divide the property by the number of surviving children plus the number of deceased children who have left lineal descendants surviving the intestate.

(2) Grandchildren. – To determine the share of each surviving grandchild by a deceased child of the intestate in the property not taken under the preceding subdivision of this subsection, divide that property by the number of such surviving grandchildren plus the number of deceased grandchildren who have left lineal descendants surviving the intestate.

(3) Great-Grandchildren. – To determine the share of each surviving great-grandchild by a deceased grandchild of the intestate in the property not taken under the preceding subdivisions of this subsection, divide that property by the number of such surviving great-grandchildren plus the number of deceased great-grandchildren who have left lineal descendants surviving the intestate.

(4) Great-Great-Grandchildren. – To determine the share of each surviving great-great-grandchild by a deceased great-grandchild of the intestate in the property not taken under the preceding subdivisions of this subsection, divide that property by the number of such surviving great-great-grandchildren plus the number of deceased great-great- grandchildren who have left lineal descendants surviving the intestate.

(5) Other Lineal Descendants of Children. – Divide, according to the formula established in the preceding subdivisions of this subsection, any property not taken under such preceding subdivisions, among the lineal descendants of the children of the intestate not already participating.

(b) Brothers and Sisters and Their Lineal Descendants. – If the intestate is survived by brothers and sisters or the lineal descendants of deceased brothers and sisters, their respective shares in the property which they are entitled to take under G.S. 29-15 of this Chapter shall be determined in the following manner:

(1) Brothers and Sisters. – To determine the share of each surviving brother and sister, divide the property by the number of surviving brothers and sisters plus the number of deceased brothers and sisters who have left lineal descendants surviving the intestate within the fifth degree of kinship to the intestate.

(2) Nephews and Nieces. – To determine the share of each surviving nephew or niece by a deceased brother or sister of the intestate in the property not taken under the preceding subdivision of this subsection, divide that property by the number of such surviving nephews or nieces plus the number of deceased nephews and nieces who have left lineal descendants surviving the intestate within the fifth degree of kinship to the intestate.

Working through subsection 29-16 as instructed, we can immediately eliminate subdivision (a) as inapplicable, because it begins:

“If the intestate is survived by lineal descendants…”

We know that the intestate is not survived by lineal descendants, which can be defined as all those relations who are directly below you on a family tree: children, grandchildren, great-grandchildren, and so on. Knowing that the statement of subdivision (a) is false, we can skip over all of subsection (a) and continue reading until we encounter the first true statement, which is found at subdivision (b):

“If the intestate is survived by brothers and sisters or the lineal descendants of deceased brothers and sisters…”

Now that we know siblings and their issue may be entitled to a share of the intestate estate, we will continue working through the statutes until we find the instructions that tell us how they are to receive their shares. The remaining part of the first sentence provides this direction:

“…their respective shares in the property which they are entitled to take under G.S. 29-15 of this Chapter shall be determined in the following manner:”

Based upon our facts, the operative portion of the statute in question is now revealed to be subsection 29-16(b) of Article 3. More precisely, as will be shown, subdivisions 29-16(b)(1) and 29-16(b)(2). Calculating the Shares: Siblings Continuing to read 29-16(b)(1), we find the meaning of 29-16(b)’s reference to “the following manner” which instructs us how to begin calculating the division of the net intestate estate:

(1) Brothers and Sisters. – To determine the share of each surviving brother and sister, divide the property by the number of surviving brothers and sisters plus the number of deceased brothers and sisters who have left lineal descendants surviving the intestate within the fifth degree of kinship to the intestate.

To work through this subdivision, it is easier to section it or break it apart into its specific directives. That is to say, divide the sentence into sections that are limited to just one instruction or identification:

“To determine the share of each surviving brother and sister…”

Of course, this portion of the sentence informs us which shares we are about to receive instructions for calculating.

“…divide the property by the number of surviving brothers and sisters…”

Based upon our facts, we know that the number of surviving brothers and sisters is SIX.

“…plus the number of deceased brothers and sisters…”

We know there are FOUR deceased siblings, but, because we have not reached the end of this sentence, we have to continue reading for additional instructions:

“..who have left lineal descendants surviving the intestate within the fifth degree of kinship to the intestate.”

Again, our set of circumstances reveals that the answer to this directive is still FOUR. However, as a brief aside, if the number of deceased siblings was five (or any other number) and only four of those deceased siblings had living lineal descendants within the fifth degree (child, grandchild, or great-grandchild of the deceased sibling: See the Kinship Chart) then only four deceased siblings would be counted towards this calculation. Reading 29-16(b)(1) in its entirety, we now know that we are instructed to divide the property by the sum of SIX and FOUR.

 

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