SECTION 2-106. REPRESENTATION. Uniform Probate Code
(a) [Definitions.] In this section:
(1) “Deceased descendant,” “deceased parent,” or “deceased grandparent” means
a descendant, parent, or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under Section 2-104.
(2) “Surviving descendant” means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under Section 2-104.
(b) [Decedent’s Descendants.] If, under Section 2-103(a)(1), a decedent’s intestate estate or a part thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their
(a) [Definitions.] In this section:
(1) “Deceased descendant,” “deceased parent,” or “deceased grandparent” means
a descendant, parent, or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under Section 2-104.
(2) “Surviving descendant” means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under Section 2-104.
(b) [Decedent’s Descendants.] If, under Section 2-103(a)(1), a decedent’s intestate estate or a part thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their
surviving descendants had predeceased the decedent.
(c) [Descendants of Parents or Grandparents.] If, under Section 2-103(a)(3) or (4), a
decedent’s intestate estate or a part thereof passes “by representation” to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
Comment
Purpose and Scope of Revisions. This section is revised to adopt the system of representation called per capita at each generation. The per-capita-at-each-generation system is more responsive to the underlying premise of the original UPC system, in that it always provides equal shares to those equally related; the pre-1990 UPC achieved this objective in most but not all cases. (See Variation 4, below, for an illustration of this point.) In addition, a recent survey of client preferences, conducted by Fellows of the American College of Trust and Estate Counsel, suggests that the per-capita-at-each-generation system of representation is preferred by most clients. See Young, “Meaning of ‘Issue’ and ‘Descendants,’“ 13 ACTEC Probate Notes 225 (1988). The survey results were striking: Of 761 responses, 541 (71.1%) chose the per-capita- at-each-generation system; 145 (19.1%) chose the per-stirpes system, and 70 (9.2%) chose the pre-1990 UPC system.
To illustrate the differences among the three systems, consider a family, in which G is the intestate. G has 3 children, A, B, and C. Child A has 3 children, U, V, and W. Child B has 1 child, X. Child C has 2 children, Y and Z. Consider four variations.
(c) [Descendants of Parents or Grandparents.] If, under Section 2-103(a)(3) or (4), a
decedent’s intestate estate or a part thereof passes “by representation” to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
Comment
Purpose and Scope of Revisions. This section is revised to adopt the system of representation called per capita at each generation. The per-capita-at-each-generation system is more responsive to the underlying premise of the original UPC system, in that it always provides equal shares to those equally related; the pre-1990 UPC achieved this objective in most but not all cases. (See Variation 4, below, for an illustration of this point.) In addition, a recent survey of client preferences, conducted by Fellows of the American College of Trust and Estate Counsel, suggests that the per-capita-at-each-generation system of representation is preferred by most clients. See Young, “Meaning of ‘Issue’ and ‘Descendants,’“ 13 ACTEC Probate Notes 225 (1988). The survey results were striking: Of 761 responses, 541 (71.1%) chose the per-capita- at-each-generation system; 145 (19.1%) chose the per-stirpes system, and 70 (9.2%) chose the pre-1990 UPC system.
To illustrate the differences among the three systems, consider a family, in which G is the intestate. G has 3 children, A, B, and C. Child A has 3 children, U, V, and W. Child B has 1 child, X. Child C has 2 children, Y and Z. Consider four variations.
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Variation 1: All Three children survive G.
G
ABC
ABC
UVW
X
YZ
Solution: All three systems reach the same result: A, B, and C take 1/3 each.
Variation 2: One child, A, predeceases G; the other two survive G.
G
[A] B C
G
[A] B C
UVW
X
YZ
Solution: Again, all three systems reach the same result: B and C take 1/3 each; U, V,
and W take 1/9 each.
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Variation 3: All three children predecease G.
G
[A] [B] [C]
[A] [B] [C]
UVW
X
YZ
Solution: The pre-1990 UPC and the 1990 UPC systems reach the same result: U, V, W,
X, Y, and Z take 1/6 each.
The per-stirpes system gives a different result: U, V, and W take 1/9 each; X takes 1/3; and Y and Z take 1/6 each.
Variation 4: Two of the three children, A and B predecease G; C survives G. G
[A] [B] C
The per-stirpes system gives a different result: U, V, and W take 1/9 each; X takes 1/3; and Y and Z take 1/6 each.
Variation 4: Two of the three children, A and B predecease G; C survives G. G
[A] [B] C
UVW
X
YZ
Solution: In this instance, the 1990 UPC system (per capita at each generation) departs
from the pre-1990 UPC system. Under the 1990 UPC system, C takes 1/3 and the other two 1/3
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shares are combined into a single share (amounting to 2/3 of the estate) and distributed as if C, Y
and Z had predeceased G; the result is that U,V, W, and X take 1/6 each.
Although the pre-1990 UPC rejected the per-stirpes system, the result reached under the pre-1990 UPC was aligned with the per-stirpes system in this instance: C would have taken 1/3, X would have taken 1/3, and U, V, and W would have taken 1/9 each.
The 1990 UPC system furthers the purpose of the pre-1990 UPC. The pre-1990 UPC system was premised on a desire to provide equality among those equally related. The pre-1990 UPC system failed to achieve that objective in this instance. The 1990 system (per-capita-at- each-generation) remedies that defect in the pre-1990 system.
Reference. Waggoner, “A Proposed Alternative to the Uniform Probate Code’s System for Intestate Distribution among Descendants,” 66 Nw. U. L. Rev. 626 (1971).
Effect of Disclaimer. By virtue of Section 2-1106(b)(3)(A), an heir cannot use a disclaimer to effect a change in the division of an intestate’s estate. To illustrate this point, consider the following example:
Although the pre-1990 UPC rejected the per-stirpes system, the result reached under the pre-1990 UPC was aligned with the per-stirpes system in this instance: C would have taken 1/3, X would have taken 1/3, and U, V, and W would have taken 1/9 each.
The 1990 UPC system furthers the purpose of the pre-1990 UPC. The pre-1990 UPC system was premised on a desire to provide equality among those equally related. The pre-1990 UPC system failed to achieve that objective in this instance. The 1990 system (per-capita-at- each-generation) remedies that defect in the pre-1990 system.
Reference. Waggoner, “A Proposed Alternative to the Uniform Probate Code’s System for Intestate Distribution among Descendants,” 66 Nw. U. L. Rev. 626 (1971).
Effect of Disclaimer. By virtue of Section 2-1106(b)(3)(A), an heir cannot use a disclaimer to effect a change in the division of an intestate’s estate. To illustrate this point, consider the following example:
G
A
[B]
XYZ
As it stands, G’s intestate estate is divided into two equal parts: A takes half and B’s child, Z, takes the other half. Suppose, however, that A files a disclaimer under Section 2-1105. A cannot affect the basic division of G’s intestate estate by this maneuver. Section 2- 1106(b)(3)(A) provides that “the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution [except that] if, by law..., the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution.” In this example, the “disclaimed interest” is A’s share (1/2) of G’s estate; thus the 1/2 interest renounced by A devolves to A’s children, X and Y, who take 1/4 each.
As it stands, G’s intestate estate is divided into two equal parts: A takes half and B’s child, Z, takes the other half. Suppose, however, that A files a disclaimer under Section 2-1105. A cannot affect the basic division of G’s intestate estate by this maneuver. Section 2- 1106(b)(3)(A) provides that “the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution [except that] if, by law..., the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution.” In this example, the “disclaimed interest” is A’s share (1/2) of G’s estate; thus the 1/2 interest renounced by A devolves to A’s children, X and Y, who take 1/4 each.
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If Section 2-1106(b)(3)(A) had provided that G’s “estate” is to be divided as if A
predeceased G, A could have used his disclaimer to increase the share going to his children from
1/2 to 2/3 (1/3 for each child) and to decrease Z’s share to 1/3. The careful wording of 2-
1106(b)(3)(A), however, prevents A from manipulating the result by this method.
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.
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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