28-9-204. Per capita distribution.
Heirs will take per capita in the following circumstances:
(1)(A) If all members of the class who inherit real or personal property
from an intestate are related to the intestate in equal degree, they will
inherit the intestate's estate in equal shares and will be said to take per
(B) For illustration:
(i) If the intestate leaves no heirs except children, the children will take
per capita and in equal shares;
(ii) If the intestate leaves no heirs except grandchildren, all the
grandchildren will take per capita and in equal shares; and
(iii) If the inheriting class consists solely of great-grandchildren, or any
more remote descendants of the intestate who are all related to the
intestate in the same degree, they will take per capita.
(C) The same rule applies to the inheritance by collateral heirs of the
intestate as when, for illustration, the inheriting class consists entirely
of brothers and sisters, or consists solely of nieces and nephews who are
descendants of deceased brothers and sisters, or consists of any other
collateral relatives of the intestate who are related to the intestate in
(D) Likewise, when the inheriting class consists of
uncles, aunts, and grandparents or great-uncles, great-aunts, and
great-grandparents who, under § 28-9-214, may constitute an inheriting class
even though they represent different generations, all members of such a
class who survive the intestate will take per capita and share equally; and
(2) If the members of the inheriting class are related to the intestate in
unequal degree, those in the nearer degree will take per capita or in their
own right, and those in the more remote degree will take per stirpes or
through representation as provided in § 28-9-205.
28-9-205. Per stirpes distribution.
(a)(1) Heirs will take "per stirpes" if the intestate is predeceased by one
(1) or more persons who would have been entitled to inherit from the
intestate had such a person survived the intestate.
(2) The intestate's estate shall be divided into as many equal shares as
(A) Surviving heirs in the nearest degree of kinship to the intestate; and
(B) Persons, hereinafter called "predeceased persons", in the same degree of
kinship as the heirs mentioned in subdivision (a)(2)(A) of this section, who
predeceased the intestate leaving descendants who survived the intestate.
(3) Each surviving heir in the nearest degree taking per capita shall
receive one (1) share and the descendants of each predeceased person taking
per stirpes shall collectively receive one (1) share.
(b)(1) If the descendants of a predeceased person are all related to the
predeceased person in the same degree, they will take in equal parts the
share accruing to them collectively.
(2) However, if such descendants are related to the predeceased person in
unequal degree, the share accruing to them collectively shall pass per
capita to those in the nearer degree and per stirpes to those in the more
remote degree according to the formula set out in subdivision (a)(3) of this
(3) If the descendants of a predeceased person are found in multiple
generations, the above formula for division shall be applied in respect to
the descendants in each generation.
(c)(1) The provisions of this section shall be applied to both real and
personal property and to both lineal and collateral heirs.
(2) However, if under § 28-9-214, the inheriting class consists of
grandparents and uncles and aunts, or of great-grandparents and great-uncles
and great-aunts, the per stirpes rule shall apply when an uncle or aunt, or
great-uncle or great-aunt, as the case may be, shall predecease the
intestate, leaving descendants. However, it shall not be applied in respect
to a grandparent or great-grandparent of the intestate who predeceased the
intestate. In this event the grandparent or great-grandparent shall not be
counted in determining the number of shares passing to the members of the
inheriting class or those taking through them by representation.
28-9-213. Kinsmen of the half blood.
An intestate's kinsmen of the half blood will inherit the intestate's real
or personal property to the same extent as if they were the intestate's
kinsmen of the whole blood.
28-9-214. Tables of descents.
The heritable estate of an intestate as defined in § 28-9-206 shall pass as
follows upon the intestate's death:
(1) First, to the children of the intestate and the descendants of each
child of the intestate who may have predeceased the intestate. The children
and descendants will take per capita or per stirpes according to §§ 28-9-204
(2) Second, if the intestate is survived by no descendant, to the
intestate's surviving spouse unless the intestate and the surviving spouse
had been continuously married less than three (3) years next preceding the
death of the intestate, in which event the surviving spouse will take merely
fifty percent (50%) of the intestate's heritable estate;
(3) Third, if the intestate is survived by no descendant or spouse, to the
intestate's surviving parents, sharing equally, or to the sole surviving
parent if only one (1) of them shall be living;
(4) Fourth, if the intestate is survived by no descendant but is survived by
a spouse to whom the intestate has been continuously married less than three
(3) years next preceding the death of the intestate, the entire portion of
his or her heritable estate which does not pass to the surviving spouse
under subdivision (2) of this section shall pass to the intestate's
surviving parents, sharing equally, or to the sole surviving parent if only
one (1) of them shall be living;
CLICK HERE AND OPEN THE NEW SITE TO CONTINUE READING THE LAWS