Looking back to 29-16(a)(1), we see that it solely instructed how to determine the share of “each surviving brother and sister”, without any reference as to how the shares of deceased siblings are to be determined.
Note this again: Although subsection 29-16(b)(1) utilizes the number of deceased siblings in its calculation process, it does not in any way instruct how the shares of deceased siblings are to be determined. (In fact, up to this point, we cannot even be certain that later instructions will provide a share to the living nieces and nephews who are present in this example.)
Based upon the instructions for the calculation given by 29-16(b)(1), each of the six surviving siblings receives $50,000 : $500,000 / (6 + 4) = $50,000
Calculating the Shares: Nieces and Nephews
With six shares of $50,000 distributed from the $500,000 net intestate estate, we still have $200,000 remaining for distribution : 500,000 – (6 * 50,000) = $200,000
As each living sibling has received a share according to the statute’s instructions, we can eliminate them from any further distribution until we encounter instructions that indicate they are to receive a portion of the intestate estate that remains after they receive the above shares.
At this point, it is more likely that we will be dealing with the children of the four deceased siblings.
Reading the statute from top to bottom, we continue on to subdivision 29-16(b)(2) and work through its contents in the same manner used above with 29-16(b)(1) by sectioning it into the following operative parts:
“(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.”
Looking at these seven sentence parts, we can see that the subdivision’s main concern is determining how much of the property that was not given away by the calculation performed under subdivision 29-16(b)(1) will be given to each living niece and nephew whose parent is the intestate’s deceased sibling. To think about this in another manner, the most important directives of this subdivision are,
“…each surviving nephew or niece by a deceased brother or sister of the intestate…”
“…the property not taken under [29-16(b)(1)]…”
“…divide [the property not taken under 29-16(b)(1)] by the number of [surviving nephew[s] or niece[s] by a deceased brother or sister of the intestate] 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.”
Applying these instructions to our facts results in each living niece and nephew by a deceased sibling being given a $33,333.33 share of the $200,000 : $200,000 / 6 = $33,333.33
Each living sibling takes $50,000 and each applicable living niece and nephew receives approximately $33,333.33
Contrast this ‘modified per stirpes’ with a the ‘strict per stirpes’ distribution followed by other states, which would give each living niece and nephew a portion of his or her deceased parent’s $50,000 share. Those nieces without any siblings would receive the deceased parent’s full $50,000 share.
Those nieces with siblings would receive only that portion of the $50,000 share that resulted from a division by the total number of living nieces and deceased nieces with children or grandchildren.
The example found at this page is a comparatively simple division among just two classes of relationship using just one type of property.
The Intestacy Evaluators℠ reliably perform these distributions in just seconds by thoroughly evaluating and comparing each answer that is given to the selected statutory distribution scheme. They just as quickly provide intestate distribution summaries for even for those states that consider multiple forms of property and which divide the intestate estate among multiple and various classes of relationship.