SECTION 2-101. INTESTATE ESTATE. Uniform Probate Code
(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this [code], except as modified by the decedent’s will.
(b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share.
Comment
Purpose of Revision. The amendments to subsection (a) are stylistic, not substantive.
New subsection (b) authorizes the decedent, by will, to exclude or limit the right of an individual or class to share in the decedent’s intestate estate, in effect disinheriting that individual or class. By specifically authorizing so-called negative wills, subsection (b) reverses the usually accepted common-law rule, which defeats a testator’s intent for no sufficient reason. See Note, “The Intestate Claims of Heirs Excluded by Will: Should ‘Negative Wills’ Be Enforced?,” 52 U. Chi. L. Rev. 177 (1985).
Whether or not in an individual case the decedent’s will has excluded or limited the right of an individual or class to take a share of the decedent’s intestate estate is a question of construction. A clear case would be one in which the decedent’s will expressly states that an individual is to receive none of the decedent’s estate. Examples would be testamentary language such as “my brother, Hector, is not to receive any of my property” or “Brother Hector is disinherited.”
Another rather clear case would be one in which the will states that an individual is to receive only a nominal devise, such as “I devise $50.00 to my brother, Hector, and no more.”
(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this [code], except as modified by the decedent’s will.
(b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share.
Comment
Purpose of Revision. The amendments to subsection (a) are stylistic, not substantive.
New subsection (b) authorizes the decedent, by will, to exclude or limit the right of an individual or class to share in the decedent’s intestate estate, in effect disinheriting that individual or class. By specifically authorizing so-called negative wills, subsection (b) reverses the usually accepted common-law rule, which defeats a testator’s intent for no sufficient reason. See Note, “The Intestate Claims of Heirs Excluded by Will: Should ‘Negative Wills’ Be Enforced?,” 52 U. Chi. L. Rev. 177 (1985).
Whether or not in an individual case the decedent’s will has excluded or limited the right of an individual or class to take a share of the decedent’s intestate estate is a question of construction. A clear case would be one in which the decedent’s will expressly states that an individual is to receive none of the decedent’s estate. Examples would be testamentary language such as “my brother, Hector, is not to receive any of my property” or “Brother Hector is disinherited.”
Another rather clear case would be one in which the will states that an individual is to receive only a nominal devise, such as “I devise $50.00 to my brother, Hector, and no more.”
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An individual need not be identified by name to be excluded. Thus, if brother Hector is
the decedent’s only brother, Hector could be identified by a term such as “my brother.” A group
or class of relatives (such as “my brothers and sisters”) can also be excluded under this
provision.
Subsection (b) establishes the consequence of a disinheritance – the share of the decedent’s intestate estate to which the disinherited individual or class would have succeeded passes as if that individual or class had disclaimed the intestate share. Thus, if the decedent’s will provides that brother Hector is to receive $50.00 and no more, Hector is entitled to the $50.00 devise (because Hector is not treated as having predeceased the decedent for purposes of testate succession), but the portion of the decedent’s intestate estate to which Hector would have succeeded passes as if Hector had disclaimed his intestate share. The consequence of a disclaimer by Hector of his intestate share is governed by Section 2-1106(b)(3)(A), which provides that Hector’s intestate share passes to Hector’s descendants by representation.
Example: G died partially intestate. G is survived by brother Hector, Hector’s 3 children (X, Y, and Z), and the child (V) of a deceased sister. G’s will excluded Hector from sharing in G’s intestate estate.
Solution: V takes half of G’s intestate estate. X, Y, and Z split the other half, i.e., they take 1/6 each. Sections 2-103(3); 2-106; 2-1106(b)(3)(A). Had Hector not been excluded by G’s will, the share to which Hector would have succeeded would have been 1/2. Under Section 2- 1106(b)(3)(A), that half, not the whole of G’s intestate estate, is what passes to Hector’s descendants by representation as if Hector had disclaimed his intestate share.
Note that if brother Hector had actually predeceased G, or was treated as if he predeceased G by reason of not surviving G by 120 hours (see Section 2-104), then no consequence flows from Hector’s disinheritance: V, X, Y, and Z would each take 1/4 of G’s intestate estate under sections 2-103(3) and 2-106.
2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article II (Sections 2-1101 to 2-1117). The statutory references in this Comment to former Section 2-801 have been replaced by appropriate references to Part 11. Updating these statutory references has not changed the substance of this Comment.
Subsection (b) establishes the consequence of a disinheritance – the share of the decedent’s intestate estate to which the disinherited individual or class would have succeeded passes as if that individual or class had disclaimed the intestate share. Thus, if the decedent’s will provides that brother Hector is to receive $50.00 and no more, Hector is entitled to the $50.00 devise (because Hector is not treated as having predeceased the decedent for purposes of testate succession), but the portion of the decedent’s intestate estate to which Hector would have succeeded passes as if Hector had disclaimed his intestate share. The consequence of a disclaimer by Hector of his intestate share is governed by Section 2-1106(b)(3)(A), which provides that Hector’s intestate share passes to Hector’s descendants by representation.
Example: G died partially intestate. G is survived by brother Hector, Hector’s 3 children (X, Y, and Z), and the child (V) of a deceased sister. G’s will excluded Hector from sharing in G’s intestate estate.
Solution: V takes half of G’s intestate estate. X, Y, and Z split the other half, i.e., they take 1/6 each. Sections 2-103(3); 2-106; 2-1106(b)(3)(A). Had Hector not been excluded by G’s will, the share to which Hector would have succeeded would have been 1/2. Under Section 2- 1106(b)(3)(A), that half, not the whole of G’s intestate estate, is what passes to Hector’s descendants by representation as if Hector had disclaimed his intestate share.
Note that if brother Hector had actually predeceased G, or was treated as if he predeceased G by reason of not surviving G by 120 hours (see Section 2-104), then no consequence flows from Hector’s disinheritance: V, X, Y, and Z would each take 1/4 of G’s intestate estate under sections 2-103(3) and 2-106.
2002 Amendment Relating to Disclaimers. In 2002, the Code’s former disclaimer provision (Section 2-801) was replaced by the Uniform Disclaimer of Property Interests Act, which is incorporated into the Code as Part 11 of Article II (Sections 2-1101 to 2-1117). The statutory references in this Comment to former Section 2-801 have been replaced by appropriate references to Part 11. Updating these statutory references has not changed the substance of this Comment.
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