Posted June, 2008 Kurt R. Nilson, Esq.          |            CLICK HERE FOR MORE ARTICLES

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. 

This subsection first tells us that all intestate property that isn't given to the surviving spouse will be controlled by this subsection:

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:

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."

Working through subsection 29-16 as instructed, we can immediately eliminate subdivision (a) as inapplicable, because it begins:

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):

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:
 

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:
 

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:
 

Of course, this portion of the sentence informs us which shares we are about to receive instructions for calculating.

Based upon our facts, we know that the number of surviving brothers and sisters is SIX.

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:
 

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:

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:

The what:

The how:

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^TM 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^TM 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.