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The following analysis of North Carolina's
intestate distribution scheme among the living issue of deceased heirs
demonstrates a method of statutory interpretation that can be used with any
state's laws.
Relevant Facts
The following example is written according to a
distribution among six surviving siblings and four deceased siblings and a
net intestate estate of $500,000. It will be further assumed that each of
the four deceased siblings has surviving issue (the deceased's nieces and
nephews), with the total number of nieces and nephews by deceased siblings
being six.
As will be shown, the number of living children
by each of these deceased siblings is not important to the ultimate
calculation.
For instance, one of the deceased siblings may
have three living children, with each of the remaining three deceased
siblings having one living child. A second possibility is that two of
the deceased siblings have two living children each, with the remaining two
deceased siblings having one living child each. Assuming that none of
these deceased children also have deceased children with living issue, the
end result of either of these scenarios will be the same.
North Carolina's Intestate Laws
The rules that control the distribution of
intestate property in North Carolina are mainly found at Chapter 29 of the
North Carolina General Statutes, which is entitled Intestate Succession.
(The full language of the statute can also be opened in a new window here:
N.C. Intestacy Laws). In the chosen scenario, we know there isn't
a surviving spouse, living child, issue of a deceased child, or living
parent.
Beginning with subsection 29-15, we can read
through and eliminate the inapplicable elements until we reach a subsection
that asks about facts that match the present circumstances.
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29-15. Shares of others than
surviving spouse.
Those persons surviving the intestate, other than the surviving
spouse, shall take that share of the net estate not distributable to
the surviving spouse, or the entire net estate if there is no
surviving spouse, as follows:
(1) If the intestate is survived by only one child or by only one
lineal descendant of only one deceased child, that person shall take
the entire net estate or share, but if the intestate is survived by
two or more lineal descendants of only one deceased child, they shall
take as provided in G.S. 29-16; or
(2) If the intestate is survived by two or more children or by one
child and any lineal descendant of one or more deceased children, or
by lineal descendants of two or more deceased children, they shall
take as provided in G.S. 29-16; or
(3) If the intestate is not survived by a child, children or any
lineal descendant of a deceased child or children, but is survived by
both parents, they shall take in equal shares, or if either parent is
dead, the surviving parent shall take the entire share; or
(4) If the intestate is not survived by such children or lineal
descendants or by a parent, the brothers and sisters of the intestate,
and the lineal descendants of any deceased brothers or sisters, shall
take as provided in G.S. 29-16; or
(5) If there is no one entitled to take under the preceding
subdivisions of this section or under G.S. 29-14... |
This subsection first tells us that all
intestate property that isn't given to the surviving spouse will be
controlled by this subsection:
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"Those persons surviving the
intestate...shall take...the entire net estate if there is no
surviving spouse..." |
Continuing with subsection 29-15, we can
eliminate subdivision 1 because it applies to circumstances involving just
one living child or one deceased child who is the ancestor of just one
living descendant. Similarly, subdivision 2 is inapplicable, because
it deals with multiple children or living descendants of deceased children.
Finally, subdivision 3 can also be determined as inapplicable, because it
pertains to circumstances with at least one living parent.
Upon reaching subdivision 4, we see that it
appears to cover our facts:
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"(4) If the intestate is not
survived by such children or lineal descendants or by a parent, the
brothers and sisters of the intestate, and the lineal descendants of
any deceased brothers or sisters, shall take as provided in G.S.
29-16..." |
To read it another way, this subdivision tells
us "if all of the conditions in this sentence are true, then read G.S. 29-16
to learn how this property will be divided."
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29-16. Distribution among
classes.
(a) Children and Their Lineal
Descendants. – If the intestate is survived by lineal descendants,
their respective shares in the property which they are entitled to
take under G.S. 29-15 of this Chapter shall be determined in the
following manner:
(1) Children. – To determine the share of each surviving child, divide
the property by the number of surviving children plus the number of
deceased children who have left lineal descendants surviving the
intestate.
(2) Grandchildren. – To determine the share of each surviving
grandchild by a deceased child of the intestate in the property not
taken under the preceding subdivision of this subsection, divide that
property by the number of such surviving grandchildren plus the number
of deceased grandchildren who have left lineal descendants surviving
the intestate.
(3) Great-Grandchildren. – To determine the share of each surviving
great-grandchild by a deceased grandchild of the intestate in the
property not taken under the preceding subdivisions of this
subsection, divide that property by the number of such surviving
great-grandchildren plus the number of deceased great-grandchildren
who have left lineal descendants surviving the intestate.
(4) Great-Great-Grandchildren. – To determine the share of each
surviving great-great-grandchild by a deceased great-grandchild of the
intestate in the property not taken under the preceding subdivisions
of this subsection, divide that property by the number of such
surviving great-great-grandchildren plus the number of deceased
great-great- grandchildren who have left lineal descendants surviving
the intestate.
(5) Other Lineal Descendants of Children. – Divide, according to the
formula established in the preceding subdivisions of this subsection,
any property not taken under such preceding subdivisions, among the
lineal descendants of the children of the intestate not already
participating.
(b) Brothers and Sisters and
Their Lineal Descendants. – If the intestate is survived by
brothers and sisters or the lineal descendants of deceased brothers
and sisters, their respective shares in the property which they are
entitled to take under G.S. 29-15 of this Chapter shall be determined
in the following manner:
(1) Brothers and Sisters. – To determine the share of each surviving
brother and sister, divide the property by the number of surviving
brothers and sisters plus the number of deceased brothers and sisters
who have left lineal descendants surviving the intestate within the
fifth degree of kinship to the intestate.
(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. |
Working through subsection 29-16 as instructed,
we can immediately eliminate subdivision (a) as inapplicable, because it
begins:
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"If the intestate is survived by
lineal descendants..." |
We know that the intestate is not survived by
lineal descendants, which can be defined as all those relations who are
directly below you on a family tree: children, grandchildren,
great-grandchildren, and so on. Knowing that the statement of
subdivision (a) is false, we can skip over all of subsection (a) and
continue reading until we encounter the first true statement, which is found
at subdivision (b):
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"If the intestate is survived by
brothers and sisters or the lineal descendants of deceased brothers
and sisters..." |
Now that we know siblings and their issue may be entitled to a share of the
intestate estate, we will continue working through the statutes until we
find the instructions that tell us how they are to receive their
shares. The remaining part of the first sentence provides this
direction:
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"...their respective shares in the
property which they are entitled to take under G.S. 29-15 of this
Chapter shall be determined in the following manner:" |
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Based upon our facts, the operative portion of
the statute in question is now revealed to be subsection 29-16(b) of Article
3. More precisely, as will be shown, subdivisions 29-16(b)(1) and
29-16(b)(2).
Calculating the Shares: Siblings
Continuing to read 29-16(b)(1), we find the meaning of 29-16(b)'s reference
to "the following manner" which instructs us how to begin calculating the
division of the net intestate estate:
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(1) Brothers and Sisters. –
To determine the share of each surviving brother and sister, divide
the property by the number of surviving brothers and sisters plus the
number of deceased brothers and sisters who have left lineal
descendants surviving the intestate within the fifth degree of kinship
to the intestate. |
To work through this subdivision, it is easier
to section it or break it apart into its specific directives. That is
to say, divide the sentence into sections that are limited to just one
instruction or identification:
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"To determine the share of each
surviving brother and sister..." |
Of course, this portion of the sentence informs
us which shares we are about to receive instructions for calculating.
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"...divide the property by the
number of surviving brothers and sisters..." |
Based upon our facts, we know that the number of
surviving brothers and sisters is SIX.
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"...plus the number of deceased
brothers and sisters..." |
We know there are FOUR deceased siblings, but, because we have not reached
the end of this sentence, we have to continue reading for additional
instructions:
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"..who have left lineal descendants
surviving the intestate within the fifth degree of kinship to the
intestate." |
Again, our set of circumstances reveals that the
answer to this directive is still FOUR. However, as a brief aside, if
the number of deceased siblings was five (or any other number) and only four
of those deceased siblings had living lineal descendants within the fifth
degree (child, grandchild, or great-grandchild of the deceased sibling: See
the
Kinship Chart) then only four deceased siblings would be counted towards
this calculation.
Reading 29-16(b)(1) in its entirety, we now know that we are instructed to
divide the property by the sum of SIX and FOUR.
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:
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"(2) Nephews and Nieces. –
To determine the share of each surviving nephew or niece..." |
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"...by a deceased brother or sister
of the intestate..." |
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"...in the property not taken under
the preceding subdivision of this subsection..." |
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"...divide that property..." |
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"...by the number of such surviving
nephews or nieces..." |
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"...plus the number of deceased
nephews and nieces..." |
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"...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,
The who:
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"...each surviving nephew or niece
by a deceased brother or sister of the intestate..." |
The what:
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"...the property not taken under
[29-16(b)(1)]..." |
The how:
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"...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.
(See which form of representation is followed by
each state with the Interactive Summary of Intestate Laws.)
Conclusion
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 Calculators™
reliably perform these distributions in just seconds by thoroughly
evaluating and comparing each answer that is given to the selected statutory
distribution scheme.
The Intestacy Calculators™
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.
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Intestacy Calculators™
Rather than carry out each of the
steps shown above, open the Intestacy Calculator™ for your state of interest to
let it ask the relevant questions and perform the math. |
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