SECTION 2-107. KINDRED OF HALF BLOOD. Uniform Probate Code
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
SECTION 2-108. [RESERVED.]
Legislative Note: Section 2-108 is reserved for possible future use. The 2008 amendments moved the content of this section to Section 2-104(a)(2).
SECTION 2-109. ADVANCEMENTS.
(a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement, or (ii) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
(b) For purposes of subsection (a), property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever first occurs.
(c) If the recipient of the property fails to survive the decedent, the property is not taken
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
SECTION 2-108. [RESERVED.]
Legislative Note: Section 2-108 is reserved for possible future use. The 2008 amendments moved the content of this section to Section 2-104(a)(2).
SECTION 2-109. ADVANCEMENTS.
(a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement, or (ii) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
(b) For purposes of subsection (a), property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever first occurs.
(c) If the recipient of the property fails to survive the decedent, the property is not taken
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into account in computing the division and distribution of the decedent’s intestate estate, unless
the decedent’s contemporaneous writing provides otherwise.
Comment
Purpose of the 1990 Revisions. This section was revised so that an advancement can be
taken into account with respect to the intestate portion of a partially intestate estate.
Other than these revisions, and a few stylistic and clarifying amendments, the original content of the section is maintained, under which the common law relating to advancements is altered by requiring written evidence of the intent that an inter-vivos gift be an advancement.
The statute is phrased in terms of the donee being an heir “at the decedent’s death”. The donee need not be a prospective heir at the time of the gift. For example, if the intestate, G, made an inter-vivos gift intended to be an advancement to a grandchild at a time when the intestate’s child who is the grandchild’s parent is alive, the grandchild would not then be a prospective heir. Nevertheless, if G’s intent that the gift be an advancement is contained in a written declaration or acknowledgment as provided in subsection (a), the gift is regarded as an advancement if G’s child (who is the grandchild’s parent) predeceases G, making the grandchild an heir.
To be an advancement, the gift need not be an outright gift; it can be in the form of a will substitute, such as designating the donee as the beneficiary of the intestate’s life-insurance policy or the beneficiary of the remainder interest in a revocable inter-vivos trust.
Most inter vivos transfers today are intended to be absolute gifts or are carefully integrated into a total estate plan. If the donor intends that any transfer during the donor’s lifetime be deducted from the donee’s share of the donor’s estate, the donor may either execute a will so providing or, if he or she intends to die intestate, charge the gift as an advance by a writing within the present section.
This section applies to advances to the decedent’s spouse and collaterals (such as nephews and nieces) as well as to descendants.
Computation of Shares – Hotchpot Method. This section does not specify the method of taking an advancement into account in distributing the decedent’s intestate estate. That process, called the hotchpot method, is provided by the common law. The hotchpot method is illustrated by the following example.
Example: G died intestate, survived by his wife (W) and his three children (A, B, and C) by a prior marriage. G’s probate estate is valued at $190,000. During his lifetime, G had advanced A $50,000 and B $10,000. G memorialized both gifts in a writing declaring his intent that they be advancements.
Solution. The first step in the hotchpot method is to add the value of the advancements to
Comment
Purpose of the 1990 Revisions. This section was revised so that an advancement can be
taken into account with respect to the intestate portion of a partially intestate estate.
Other than these revisions, and a few stylistic and clarifying amendments, the original content of the section is maintained, under which the common law relating to advancements is altered by requiring written evidence of the intent that an inter-vivos gift be an advancement.
The statute is phrased in terms of the donee being an heir “at the decedent’s death”. The donee need not be a prospective heir at the time of the gift. For example, if the intestate, G, made an inter-vivos gift intended to be an advancement to a grandchild at a time when the intestate’s child who is the grandchild’s parent is alive, the grandchild would not then be a prospective heir. Nevertheless, if G’s intent that the gift be an advancement is contained in a written declaration or acknowledgment as provided in subsection (a), the gift is regarded as an advancement if G’s child (who is the grandchild’s parent) predeceases G, making the grandchild an heir.
To be an advancement, the gift need not be an outright gift; it can be in the form of a will substitute, such as designating the donee as the beneficiary of the intestate’s life-insurance policy or the beneficiary of the remainder interest in a revocable inter-vivos trust.
Most inter vivos transfers today are intended to be absolute gifts or are carefully integrated into a total estate plan. If the donor intends that any transfer during the donor’s lifetime be deducted from the donee’s share of the donor’s estate, the donor may either execute a will so providing or, if he or she intends to die intestate, charge the gift as an advance by a writing within the present section.
This section applies to advances to the decedent’s spouse and collaterals (such as nephews and nieces) as well as to descendants.
Computation of Shares – Hotchpot Method. This section does not specify the method of taking an advancement into account in distributing the decedent’s intestate estate. That process, called the hotchpot method, is provided by the common law. The hotchpot method is illustrated by the following example.
Example: G died intestate, survived by his wife (W) and his three children (A, B, and C) by a prior marriage. G’s probate estate is valued at $190,000. During his lifetime, G had advanced A $50,000 and B $10,000. G memorialized both gifts in a writing declaring his intent that they be advancements.
Solution. The first step in the hotchpot method is to add the value of the advancements to
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the value of G’s probate estate. This combined figure is called the hotchpot estate.
In this case, G’s hotchpot estate preliminarily comes to $250,000 ($190,000 + $50,000 + $10,000). W’s intestate share of a $250,000 estate under Section 2-102(4) is $200,000 ($150,000 plus 1/2 of $100,000). The remaining $50,000 is divided equally among A, B, and C, or $16,667 each. This calculation reveals that A has received an advancement greater than the share to which he is entitled; A can retain the $50,000 advancement, but is not entitled to any additional amount. A and A’s $50,000 advancement are therefore disregarded and the process is begun over.
Once A and A’s $50,000 advancement are disregarded, G’s revised hotchpot estate is $200,000 ($190,000 + $10,000). W’s intestate share is $175,000 ($150,000 plus 1/2 of $50,000). The remaining $25,000 is divided equally between B and C, or $12,500 each. From G’s intestate estate, B receives $2,500 (B already having received $10,000 of his ultimate $12,500 share as an advancement); and C receives $12,500. The final division of G’s probate estate is $175,000 to W, zero to A, $2,500 to B, and $12,500 to C.
Effect if Advancee Predeceases the Decedent; Disclaimer. If a decedent had made an advancement to a person who predeceased the decedent, the last sentence of Section 2-109 provides that the advancement is not taken into account in computing the intestate share of the recipient’s descendants (unless the decedent’s declaration provides otherwise). The rationale is that there is no guarantee that the recipient’s descendants received the advanced property or its value from the recipient’s estate.
To illustrate the application of the last sentence of Section 2-109, consider this case: During her lifetime, G had advanced $10,000 to her son, A. G died intestate, leaving a probate estate of $50,000. G was survived by her daughter, B, and by A’s child, X. A predeceased G.
G’s advancement to A is disregarded. G’s $50,000 intestate estate is divided into two equal shares, half ($25,000) going to B and the other half ($25,000) going to A’s child, X.
Now, suppose that A survived G. In this situation, of course, the advancement to A is taken into account in the division of G’s intestate estate. Under the hotchpot method, illustrated above, G’s hotchpot estate is $60,000 (probate estate of $50,000 plus advancement to A of $10,000). A takes half of this $60,000 amount, or $30,000, but is charged with already having received $10,000 of it. Consequently, A takes only a 2/5 share ($20,000) of G’s intestate estate, and B takes the remaining 3/5 share ($30,000).
Note that A cannot use a disclaimer under Section 2-1105 in effect to give his child, X, a larger share than A was entitled to. Under Section 2-1106(b)(3)(A), the effect of a disclaimer by A is that the disclaimant’s “interest” devolves to A’s descendants as if the disclaimant had predeceased the decedent. The “interest” that A renounced was a right to a 2/5 share of G’s estate, not a 1/2 share. Consequently, A’s 2/5 share ($20,000) passes to A’s child, X.
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,
In this case, G’s hotchpot estate preliminarily comes to $250,000 ($190,000 + $50,000 + $10,000). W’s intestate share of a $250,000 estate under Section 2-102(4) is $200,000 ($150,000 plus 1/2 of $100,000). The remaining $50,000 is divided equally among A, B, and C, or $16,667 each. This calculation reveals that A has received an advancement greater than the share to which he is entitled; A can retain the $50,000 advancement, but is not entitled to any additional amount. A and A’s $50,000 advancement are therefore disregarded and the process is begun over.
Once A and A’s $50,000 advancement are disregarded, G’s revised hotchpot estate is $200,000 ($190,000 + $10,000). W’s intestate share is $175,000 ($150,000 plus 1/2 of $50,000). The remaining $25,000 is divided equally between B and C, or $12,500 each. From G’s intestate estate, B receives $2,500 (B already having received $10,000 of his ultimate $12,500 share as an advancement); and C receives $12,500. The final division of G’s probate estate is $175,000 to W, zero to A, $2,500 to B, and $12,500 to C.
Effect if Advancee Predeceases the Decedent; Disclaimer. If a decedent had made an advancement to a person who predeceased the decedent, the last sentence of Section 2-109 provides that the advancement is not taken into account in computing the intestate share of the recipient’s descendants (unless the decedent’s declaration provides otherwise). The rationale is that there is no guarantee that the recipient’s descendants received the advanced property or its value from the recipient’s estate.
To illustrate the application of the last sentence of Section 2-109, consider this case: During her lifetime, G had advanced $10,000 to her son, A. G died intestate, leaving a probate estate of $50,000. G was survived by her daughter, B, and by A’s child, X. A predeceased G.
G’s advancement to A is disregarded. G’s $50,000 intestate estate is divided into two equal shares, half ($25,000) going to B and the other half ($25,000) going to A’s child, X.
Now, suppose that A survived G. In this situation, of course, the advancement to A is taken into account in the division of G’s intestate estate. Under the hotchpot method, illustrated above, G’s hotchpot estate is $60,000 (probate estate of $50,000 plus advancement to A of $10,000). A takes half of this $60,000 amount, or $30,000, but is charged with already having received $10,000 of it. Consequently, A takes only a 2/5 share ($20,000) of G’s intestate estate, and B takes the remaining 3/5 share ($30,000).
Note that A cannot use a disclaimer under Section 2-1105 in effect to give his child, X, a larger share than A was entitled to. Under Section 2-1106(b)(3)(A), the effect of a disclaimer by A is that the disclaimant’s “interest” devolves to A’s descendants as if the disclaimant had predeceased the decedent. The “interest” that A renounced was a right to a 2/5 share of G’s estate, not a 1/2 share. Consequently, A’s 2/5 share ($20,000) passes to A’s child, X.
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,
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which is incorporated into the Code as Part 11 of Article 2 (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.
2008 Cost-of-Living Adjustment. As revised in 1990, the dollar amount in Section 2- 102(4) was $100,000. To adjust for inflation, that amount was increased in 2008 to $150,000. The Example in this Comment was revised in 2008 to reflect that increase.
Historical Note. This Comment was revised in 2002 and 2008.
2008 Cost-of-Living Adjustment. As revised in 1990, the dollar amount in Section 2- 102(4) was $100,000. To adjust for inflation, that amount was increased in 2008 to $150,000. The Example in this Comment was revised in 2008 to reflect that increase.
Historical Note. This Comment was revised in 2002 and 2008.
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