PROPERTY D SLIDES2-17-14

Tuesday Feb 18 Music: Jason Mraz, Mr. A-Z (2005)

Posted on Course Page: Chapter 4 Posted on Course Page: Chapter 4 Supplement &Supplement &

Updated Syllabus & Assignment SheetUpdated Syllabus & Assignment Sheet

Yellowstone Reminder: Yellowstone Reminder: Critique of Rev. Prob. 2C Critique of Rev. Prob. 2C Due Tomorrow @ 10amDue Tomorrow @ 10am

Chapter 2: The Eminent Domain Power Chapter 2: The Eminent Domain Power & the Public Use Requirement& the Public Use Requirement

•Federal Constitutional Background•State Public Use Standards•Kelo & BeyondKelo & Beyond• Kelo Majority & Kennedy Concurrence• Kelo Dissents & Merrill•Review Problems•Rev. Problem 2C•Rev. Problem 2G

SHENANDOAH (Rev. Prob. 2G: Critique)

APPALACHIAN TRAIL

Critique of Review Problem 2G Critique of Review Problem 2G (Shenandoah)(Shenandoah)

• For General Instructions See Info Memo #1 @ IM10• Plaintiffs = Arguments Favoring Hatchcock Test• Defendants = Arguments Favoring Pure Rational Basis

•Written Submission Due by E-Mail Thursday 2/20 @ 10 am• E-Mail me if Qs

REDWOODREDWOOD & YELLOWSTONEYELLOWSTONE: Rev. Prob. 2G

REDWOODS & FERNS GIANT GEYSERGIANT GEYSER

Review Problem 2G Review Problem 2G ((RedwoodRedwood//YellowstoneYellowstone))

Why Each Particular Hatchcock Situation is/isn’t a Useful Test for Public Use: General Concerns Include:•Subject Matter Relevant & Important v. Irrelevant Irrelevant or Unimportantor Unimportant•Restriction Necessary/Appropriate v. Too Too RestrictiveRestrictive•Test is Workable v. Too Complex or Too VagueToo Complex or Too Vague

Review Problem 2G Review Problem 2G ((RedwoodRedwood//YellowstoneYellowstone))

Why Each Particular Hatchcock Situation is/isn’t a Useful Test for Public Use

(1) Public Necessity: Project is important & only way to do project is through Eminent Domain(2) Accountability: Private entity remains responsible to public for its use; (3) Selection: Particular parcel(s) chosen based on facts of independent public significance.

Review Problem 2G Review Problem 2G ((RedwoodRedwood//YellowstoneYellowstone))

•Why Rational Basis is/isn’t a Useful Test for Public Use•Obviously a Workable Test• Deference here is good because…Deference here is good because…• Too much deference here is problematic because…Too much deference here is problematic because…

Review Problem 2G Review Problem 2G ((RedwoodRedwood//YellowstoneYellowstone))

Why the Rule You Are Defending is Preferable to the Primary Beneficiary Test from

Poletown. General Concerns Include:

•Relevance/Importance of Subject Matter• Extent of Restriction or Deference•Workability of Test

Ch. 2: EmDom & Public UseWhat I Expect From You

(1) Know & Can Apply Tests•Federal• Rational Basis• Kelo MAJ/CCR Factors re Possible Higher Scrutiny

•Possible State Tests• Poletown Tests (still used by other states)• Hatchcock (incl. O’Connor Dissent in Kelo)• City of Seattle (incl. Thomas Dissent in Kelo)

Ch. 2: EmDom & Public UseWhat I Expect From You

(2) Understand Relation betw State & Federal Tests•Federal Tests Always Apply; Usually Easy to Meet• If Lawyering Q: Might Check relevant Federal Circuit for Interpretations of

Kelo•State Law Also Governs State & Local Govts• Many States Have Stricter Tests• If Lawyering Q, Check for Applicable Law

(3) Arguments re Which Test is Best (Opinion/Dissent)•Could ask you to revisit federal test (like Rev Prob 2G)•Could ask you to choose a rule for a State (like Rev Prob 2F)

Will Formalities: Brief Introduction• Technical Rules That Must Be Met to Make Will Valid• Re Testator’s Signature• Re Witnesses

• Vary Greatly From State to State• General Overview in Supplement (S46-48)• Florida Info as Specific Example (S52-53)

• Not Complex, Just Varied• We’ll Do Penn. Cases as Example• Then Go Through Review Problems as Best Way to Become Familiar With

• Review Problem 3A for Thursday• Ignore concerns re Capacity & Undue Influence• Identify possible concerns with formalities & possible rules to resolve them.

Chapter 3: Where There’s a Will … and Where There Isn’t: Property

Transfer at DeathIntestate Succession: GenerallyIntestate Succession: Generally

Qs on Intestate Succession from Qs on Intestate Succession from Materials or Yesterday’s Lecture?Materials or Yesterday’s Lecture?

Chapter 3: Where There’s a Will … and Where There Isn’t: Property

Transfer at Death•General Introduction• Intestate SuccessionIntestate Succession• Generally• Working with Specific State StatutesWorking with Specific State Statutes

• Wills• Generally• Will Formalities• Substantial Compliance• State of Mind Requirements

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Note that B & C get identical shares from D in all states.

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Florida (A-HO): Relevant Statutory Provision?

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Florida (A-HO): Florida §732.102. Spouse's share of intestate estate. The intestate share of the surviving spouse is:

(3) If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

Resulting Disposition?

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Florida (A-HO): Florida §732.102. Spouse's share of intestate estate. The intestate share of the surviving spouse is:

(3) If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

Disposition: A= 50% B = 25% C = 25%* Note under 732.102(2), if both B & C are A’s

children, A gets 1st $60K + 50%

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Hawaii (HU-N): Relevant Statutory Provision?

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Hawaii (HU-N): §2-102 Share of spouse …. The intestate share of a decedent's surviving spouse … is: … (4) The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse ….

Resulting Disposition?

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Hawaii (HU-N): §2-102 Share of spouse …. The intestate share of a decedent's surviving spouse … is: … (4) The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse ….

Disposition: A = 100K + 50%, B&C split rest* Note under 2-102(1), if both B & C are A’s children, A gets ALL!

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Vermont (O-Z): Relevant Statutory Provision?

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Vermont: § 311. Share of surviving spouse. … (2) In the event there shall survive the decedent one or more descendants of the decedent who are not descendants of the surviving spouse …, the surviving spouse shall receive one-half of the intestate estate.

Resulting Disposition?

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Vermont: § 311. Share of surviving spouse. … (2) In the event there shall survive the decedent one or more descendants of the decedent who are not descendants of the surviving spouse …, the surviving spouse shall receive one-half of the intestate estate.

Disposition: A= 50% B = 25% C = 25%•Note under § 311 (1), if both B & C are A’s children, A gets entire estate (subsection 1 different than FL, tho subsection 2 is largely the same)

DQ3.01: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Recap: •FL & VT: A= 50% B = 25% C = 25%•HI A= 100K + 50% of rest; B + C = 25% of rest each•All Three: Surviving Spouse Gets Substantially More if All Descendants Are Both D’s + Surviving Spouse’s

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Florida (A-HO): 732.103(3) tells us estate goes to siblings

Relevant Statutory Provision for Division between E & F?

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Florida §732.105. Half blood. When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.

Resulting Disposition?

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Florida §732.105. Half blood. When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.

Disposition: E = 2/3 F = 1/3

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Hawaii (Hu-N):2-103(3) tells us estate goes to siblings

Relevant Statutory Provision for Division between E & F?

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Hawaii: 2-107 Kindred of half blood. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

Resulting Disposition?

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Hawaii: 2-107 Kindred of half blood. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

Disposition: E= 50% F = 50%

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Vermont (O-Z):314(b)(2) tells us estate goes to siblings

Relevant Statutory Provision for Division between E & F?

DQ3.02: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Vermont: § 331. …[K]indred of half-blood. Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.

Same language & same result as Hawaii

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Florida (A-HO): 732.103(1) tells us estate goes to

descendants

Relevant Statutory Provision for Division between E/F/G?

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Florida §732.104. Inheritance per stirpes. Descent shall be per stirpes, whether to lineal descendants or to collateral heirs.

Means?Resulting Disposition?

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Florida §732.104. Inheritance per stirpes. Descent shall be per stirpes, whether to lineal descendants or to collateral heirs.

Disposition:•Split into one share for each deceased child.•A’s 50% goes to E•B’s 50% gets split by F & G (so 25% each)

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Vermont (O-Z):314(a) tells us estate goes to descendants

Relevant Statutory Provision for Division between E/F/G?

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Vermont: §314(a) … to the decedent's descendants by right of representation;§314(c) [which means] the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

Means?

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Vermont: §314(a) … to the decedent's descendants by right of representation;§314(c) [which means] the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

Meaning (& Disposition) Same as FloridaDistribution by Branch

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Hawaii (Hu-N):2-103(1) tells us estate goes to descendants

by representation.

Relevant Statutory Provision for Division between E/F/G?

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Hawaii: 2-106 (b) Decedent's descendants. If … a decedent's intestate estate … passes "by representation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are:

(1) Surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and(2) Deceased descendants in the same generation who left surviving descendants, if any.

Each surviving descendant in the nearest generation is allocated one share. …

Means? Resulting Disposition?

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

DQ3.03: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

Hawaii: 2-106 (b) … the estate … is divided into as many equal shares as there are:

(1) Surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and(2) Deceased descendants in the same generation who left surviving descendants, if any.

Each surviving descendant in the nearest generation [gets] one share. …

Nearest Generation = D’s grandchildrenE & F & G split evenly

DQ3.04: D had 3 children, Albert,Beatrice, Claudine. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

C alive with living child Hannah

Florida & Vermont Both Go by Branch: So Who Gets What? Florida & Vermont Both Go by Branch: So Who Gets What?

DQ3.04: D had 3 children, Albert,Beatrice, Claudine. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank & Grace

C alive with living child Hannah

• Florida & Vermont Divide into Three Branches• C gets own 1/3 share (H gets nothing b/c C alive)• E gets A’s 1/3 share• F & G split B’s 1/3 share = 1/6 each