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Who is an Heir Part 2

The prior note gave a general explanation of how Michigan intestate succession operates. This note will build upon that explanation. It will also explain some of the statutory provisions which qualify how intestate succession operates in Michigan.

As you could see, situations dealing with the descendants of a decedent's parent (brothers, sisters, nieces, nephews, grand nieces and grand nephews) can be confusing. When you get to situations where the heirs are determined by tracing the descendants of grandparents (uncles, aunts, first cousins, first cousins once removed, etc.) things can get very complicated. Under the present statutory scheme, first cousins may inherit but second cousins may not.

People often confuse the distinction between first cousins, first cousins once removed and second cousins. Your first cousin is the child of your aunt or uncle. A child of a first cousin is your first cousin once removed. A grandchild of your first cousin is your first cousin twice removed and so on. Second cousins are related to each other by descending from the same great grandfather or great grandmother. Full cousins must be of the same generation. The children of first cousins are second cousins to each other. The grandchildren of first cousins are third cousins to each other.

The parent of your second cousin is your first cousin once removed in the ascendancy and may not inherit because he or she is the descendant of great grandparents rather than grandparents. This person is not a second cousin even though the child of a great aunt or uncle because you must remember that cousins must be of the same generation. We could continue to discuss this complicated subject almost indefinitely, but since we are only concerned with who is an heir and not who will be the next English king, we will end it at this point.

Requirement that heir survive decedent for 120 hours

Pursuant to MCL 700.2104, an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent's heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is considered that the individual failed to survive for the required period. This section does not apply if its application would result in a taking of the intestate estate by the state under section 2105.

Kindred of the half blood

Pursuant to MCL 700.2107, a relative of the half blood inherits the same share he or she would inherit if he or she were of the whole blood.

Afterborn heirs

Pursuant to MCL 700.2108, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Advancements

Pursuant to MCL 700.2109, if an individual dies fully or partially intestate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only under the following circumstances:

1. The decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement.

2. The decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.

Debts to decedent

Pursuant to MCL 700.2110, a debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants.

Alienage

Pursuant to MCL 700.2111, an individual is not disqualified to take as an heir because the individual or an individual through whom he or she claims is or has been an alien.

Individuals related to decedent through two lines

Pursuant to MCL 700.2113, an individual who is related to the decedent through 2 lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.

Parent and child relationship

Pursuant to MCL 700.2114(1), an individual is the child of his or her natural parents, regardless of their martial status. The parent and child relationship may be established in any of the following manners:

1. If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession.

a. A child conceived by a woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence.

b. If a man and woman participate in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage is void, the child is presumed to be their child for the purpose of intestate succession.

2. Only the individual presumed to be the natural parent of a child may disprove a presumption that is relevant to the relationship, and this exclusive right to do so terminates upon the death of the presumed parent.

3. If a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the natural father of that child for purposes of intestate succession if any of the following occur:

a. The man joins with the mother of the child and acknowledges that the child is his child by completing an acknowledgment of parentage as prescribed in the acknowledgment of parentage act.

b. The man joins the mother in a written request for a correction of certificate of birth pertaining to the child that results in issuance of a substituted certificate recording the birth of the child.

c. The man and child have borne a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either.

d. The man is determined to be the child's father and an order of filiation establishing that paternity is entered as provided in the paternity act.

e. Regardless of the child's age or whether or not the alleged father has died, the court with jurisdiction over probate proceedings relating to the decedent's estate determines that the man is the child's father, using the standards and procedures established under the paternity act, 1956 PA 205, MCL 722.711 to 722.730.

Pursuant to MCL 700.2114(2), an adopted individual is the child of his or her adoptive parent or parents and not of his or her natural parents. This general statement is further clarified as follows:

1. An individual is considered to be adopted when a court of competent jurisdiction enters an interlocutory decree of adoption that is not vacated or reversed.

2. A child adopted by a stepparent remains an heir of the natural parent who is married to the stepparent.

3. An adopted child retains the ability to inherit from or through the other natural parents. However, the permanent termination of parental rights of a minor ends kinship between the parent whose rights are so terminated and the child for purposes of intestate succession by that parent from or through that child.

Pursuant to MCL 700.2114(4), inheritance from or through a child by either natural parent or his or her kindred is precluded unless that natural parent has openly treated the child as his or hers, and has not refused to support the child.

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