TRUSTS & ESTATES OVERVIEW OF SLAYER RULE, INTESTACY UPC, LAPSE

AND ANTI-LAPSE

I. OVERVIEW

A. UPC 2-803: Slayer Rule (30)

EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, TRUSTS, JOINT
ASSETS, LIFE INSURANCE, AND BENEFICIARY DESIGNATIONS.
(a) [Definitions.] [OMITTED]
(b) [Forfeiture of Statutory Benefits.] An individual who feloniously and intentionally kills
the decedent forfeits all benefits under this [article] with respect to the decedent’s
estate, including an intestate share, an elective share, an omitted spouse’s or child’s
share, a homestead allowance, exempt property, and a family allowance. If the
decedent died intestate, the decedent’s intestate estate passes as if the killer
disclaimed his [or her] intestate share.
(c) [Revocation of Benefits Under Governing Instruments.] The felonious and intentional
killing of the decedent:
(1) revokes any revocable (i) disposition or appointment of property made by the
decedent to the killer in a governing instrument, (ii) provision in a governing instrument
conferring a general or nongeneral power of appointment on the killer, and (iii)
nomination of the killer in a governing instrument, nominating or appointing the killer to
serve in any fiduciary or representative capacity, including a personal representative,
executor, trustee, or agent; and
(2) severs the interests of the decedent and killer in property held by them at the time of
the killing as joint tenants with the right of survivorship [or as community property with
the right of survivorship], transforming the interests of the decedent and killer into equal
tenancies in common….

II. INTESTACY: all rests on fiction: presumptive intention of decedent

A. UPC 2-102: Share of spouse (50)

(1) Entire: if no descendants/parent of D or SS + no surviving descendant of SS
(2) 300K+3/4: if no descendant of D survives BUT parent of D survives
(3) 225K+1/2: if all D’s surviving descendants are also descendants of SS and SS has
1/+ surviving descendants who are not descendants of D
(4) 150K+1/2: if 1/+ of D’s surviving descendants are not descendants of SS

B. UPC 2-103: Share of Heirs other than SS (52)

(a) Whatever not passing according to UPC 2-102 then:
(1) to D’s descendants by representation
(2) If no surviving descendants: to D’s parents equally or all to surviving parent
(3) If no surviving descendant or parent: to descendants of D’s parents or either of them
by representation
(4) If no surviving descendants or parents or descendants of parents BUT D is survived
on both sides by grandparents or their descendants:
(A) ½ to D’s paternal grandparents if both survive, or to either of them, or if both
deceased to descendants by representation
(B) ½ to D’s maternal grandparents, etc.
(5) If no surviving descendants or parents or descendants of parents BUT D is survived
by grandparents or their descendants on one side: as described in (4).
(b) If no taker under (a) but D has:
(1) one deceased spouse who has descendants: to them by representation
(2) more than 1 deceased spouse who has descendants: to them by equal share +
representation

C. UPC 2-105: No takers: estate passes to state

D. UPC 2-109: Advancements (common law=inter vivos gifts counted against intestate
estate)
Advancement only if D declared in contemporaneous writing or heir acknowledged in
writing that gift = advancement, or D’s contemporaneous writing or heir’s
acknowledgment indicates that gift taken into account when computing division

III. LAPSE AND ANTI-LAPSE (257)

A. Lapse: Generally – When the devisee predeceases the testator

B. UPC § 2-604: Failure of Testamentary Provision

(a) Except as provided in Section 2-603 [Anti-lapse], a devise, other than a residuary
devise, that fails for any reason becomes a part of the residue.
(b) Except as provided in Section 2-603, if the residue is devised to two or more
persons, the share of a residuary devisee that fails for any reason passes to the other
residuary devisee, or to other residuary devisees in proportion to the interest of each in
the remaining part of the residue.