PROPERTY A SLIDES2-24-15

Tuesday Feb 24

Music: Jim Croce Photographs & Memories (1972-73)

On Course Page: Chapter 4 Supplement & Updated

SyllabusUpdated Assignment Sheet (thru 3/17)

Previously in Property APreviously in Property A

“Public Use” as a Limit on Eminent Domain

1.Federal Deference to State Legislation2.State Tests for Public Use

a. Poletown & Review Problem 2Bb. Hatchcock & Review Problem 2C

3.Kelo: Clarification or Change in Directiona. Majority Opinion/KND Concurrence & Rev. Prob. 2Db. Dissents (& Merrill)

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)• Thomas Dissent in Kelo (Use by Public relevant in Washingbton

& elsewhere)

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 Circuit/District 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 choose a rule for a State (like Rev Prob 2F)•Could ask you to revisit federal test (like Rev Prob 2G)

REDWOOD: Rev. Prob. 2G (Critique)

REDWOODS & FERNS

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

• For General Instructions See Bottom of Assignment Sheet• Plaintiff = Arguments Favoring Hatchcock Test• Defendants = Arguments Favoring Pure Rational Basis

•Written Submission Due by E-Mail Thursday 2/26 @ 10 am• E-Mail me if Qs

YELLOWSTONE YELLOWSTONE & & SHENANDOAHSHENANDOAH: Rev. Prob. 2G

GIANT GEYSER GIANT GEYSER APPALACHIAN TRAILAPPALACHIAN TRAIL

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

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 ((YellowstoneYellowstone//ShenandoahShenandoah))

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 ((YellowstoneYellowstone//ShenandoahShenandoah))

•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 ((YellowstoneYellowstone//ShenandoahShenandoah))

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

Poletown.

General Concerns Include:General Concerns Include:

•Relevance/Importance of Subject Matter

• Extent of Restriction or Deference

•Workability of Test

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

Transfer at Death•General IntroductionGeneral Introduction• Intestate Succession• Generally• Examples from Specific State Statutes

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

Past, Present & Future:Past, Present & Future:Property Rights & TimeProperty Rights & Time

Past, Present & Future:Past, Present & Future:Property Rights & TimeProperty Rights & Time

Time Three Ways•Chapter 3: Transfer of Property at Death • Intestacy & Wills • Inevitable Part of Passing of Time

•Chapter 4: Estates & Future Interests• Division of Interests in Land by Time • Some Leftover Ideas from Early Renaissance England

•Chapter 5: Adverse Possession• Operation of Statute of Limitations to Trespass Claims • Property Rights Lost & Gained Through Passage of Time

Chapter 3: Key Technique Issues

• Statutory Language (& Variety of State Law)• Intestacy Statutes

• Will Formalities

• Undue Influence & Capacity

•Bright-Line Rules v. Flexible Standards

• Will Formalities: Rigid rules re how to to create valid will

• v. Doctrine of Substantial Compliance

• v. Fuzzy doctrines re needed state of mind

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

Transfer at Death•General Introduction

• Intestate SuccessionIntestate Succession• GenerallyGenerally• Examples from Specific State Statutes

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

Intestate Succession: GenerallyIntestate Succession: Generally

• Transition from Chapters 1 & 2: • Important form of Involuntary Transfer• What state does if you die without leaving valid instructions (proper will) as to disposition of some or all of your property

• Every State has detailed statute governing• Gen’l Info: Overview in Supplement & My Intro Today• I’ll give some specific examples, primarily from 2 states (FL + HI)

Intestate Succession: GenerallyGenerally on Disposition of Property

•Statutes All Provide Sequence of Ifs

•Unsurprisingly, strong bias to immediate family • Most people would prefer• State interest in resources going to care for dependents

•Takers are generally spouses and blood relatives• EXCEPT: Some states as last resort, to step-children or other relatives of deceased spouse• EXCEPT: A few states recognize certain spouse-equivalents • See Hawaii (Reciprocal Beneficiaries)• See Vermont (Parties to Civil Union)

Intestate Succession: GenerallyIntestate Succession: GenerallyGenerally on Disposition of Property

•Property & Spouses• Spousal Share seems small in some states BUT• Spouse often co-owner of key assets, so gets all• In Community Property States, everything earned during marriage is essentially co-owned• Often separate provisions re household goods & car

•Escheat: If no Qualified Taker Under Statute, Goes to State• Every state does this (E.g., FL 732.107 (S37) & HA 2-105 (S39))• Note special Hawaii provision (2-105.5) for land granted from Hawaiian Royal Family (cf. Midkiff)

Intestate Succession: Generally

Other Typical Provisions

•Who Counts as Relative in Situations Involving Adoption or Illegitimacy

•Simultaneous Death • Fl.Stat. § 732.601 (S37)•Haw. Stat. §2-104 (S39)

General Qs on Intestacy?

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

Transfer at Death•General Introduction

• Intestate SuccessionIntestate Succession• Generally

• Examples from Specific State StatutesExamples from Specific State Statutes• Wills• Generally• Will Formalities• Substantial Compliance• State of Mind Requirements

Intestate SuccessionIntestate SuccessionExamples from Specific State StatutesExamples from Specific State Statutes

1. Shares of Surviving Spouse & Descendants2. Shares of Half-Blood Relatives3. Furthest Relative Covered4. Afterborn Heirs5. Multiple Generations: Representation, Per

Stirpes, etc.

1. Shares of Surviving Spouse & 1. Shares of Surviving Spouse & Descendants Descendants

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 in all states B & C get identical shares from D (and X gets

nothing)

1. Shares of Surviving Spouse & Descendants 1. Shares of Surviving Spouse & Descendants 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 D’s prior marriage.

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%

1. Shares of Surviving Spouse & Descendants 1. Shares of Surviving Spouse & Descendants 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 D’s prior marriage.

Hawaii: §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 restNote: Under 2-102(1),

if both B & C are A’s children, A gets ALL!

2. Shares of Half-Blood Relatives2. Shares of Half-Blood RelativesD is survived by: Eloise, child of D’s mother and

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

2. Shares of Half-Blood Relatives2. Shares of Half-Blood RelativesD is survived by: Eloise, child of D’s mother and father;

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

Florida •§732.103(3) tells us estate goes to siblings.•§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

2. Shares of Half-Blood Relatives2. Shares of Half-Blood RelativesD is survived by: Eloise, child of D’s mother and father;

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

Hawaii •§2-103(3) tells us estate goes to siblings.•§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%

3. Furthest Relative CoveredWho is the most remote relative who can

receive the Intestate Estate ?

3. Furthest Relative CoveredWho is the most remote relative who can receive

the Intestate Estate ?

Florida: Descendants of Grandparents• §732.103 (4) (b) stops there. • §732.103 (5) adds kin of “last deceased spouse”,

although technically not D’s relatives

Hawaii: Descendants of Grandparents• §2-103(4) stops there

Compare Vermont: No Limit!!• § 314(b)(4) “in equal shares to the next of kin in

equal degree.”

4. Afterborn HeirsD’s Brother Dies Leaving Pregnant Wife; D

Subsequently Dies 10 Days Later Brother’s Posthumous Son Born

4. Afterborn HeirsD’s Brother Dies Leaving Pregnant Wife; D Subsequently

Dies 10 Days Later Brother’s Posthumous Son Born

Florida §732.106. Afterborn heirs. Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime.•Disposition: D’s Posthumous Nephew Takes a Share

Hawaii: §2-108 Afterborn heirs. An individual in gestation at a particular time is treated as living at that time if the individual lives one hundred twenty hours or more after birth.•Disposition: D’s Posthumous Nephew Takes a Share if lives for 5 Days

4. Afterborn HeirsD’s Brother Dies Leaving Pregnant Wife; D Subsequently

Dies 10 Days Later Brother’s Posthumous Son Born

Florida §732.106: D’s Posthumous Nephew Takes a Share

Hawaii: §2-108: D’s Posthumous Nephew Takes a Share if lives for 5 Days

Compare: Texas Probate Code §41(a): Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.•Disposition: D’s Posthumous Nephew Gets Nothing b/c Not D’s Lineal Descendant

5. Multiple Generations: Representation, Per Stirpes, etc.

Two Problems for You to Do on Your Own Using Florida

& Hawaii Statutes

I’ll Post Answers Next Week

5. Multiple Generations: Problem 15. Multiple Generations: Problem 1D had 2 children, Albert & Beatrice.

At time of D’s deathA dead, survived by one child, Ernest

B dead, survived by 2 children, Frank & Grace

5. Multiple Generations: Problem 25. Multiple Generations: Problem 2D had 3 children, Albert,Beatrice, Claudine.

At time of D’s deathA dead, survived by one child, Ernest

B dead, survived by 2 children, Frank & GraceC alive with living child Hannah

Intestacy: What I Expect

•General Understanding of Operation•Recognition of Issues Where States Can Differ•Meaning of Statutory Language from the Three States

We’ve Looked At.

QUESTIONS?

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

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

•WillsWills• GenerallyGenerally• Will Formalities• Substantial Compliance• State of Mind Requirements

Wills: GenerallyA. Mechanism for Transfer of Property at DeathB. Competing Concerns• Follow Wishes of Deceased: Intent Crucial• Protect Family• Provide Sufficient Indication of Transfer to Gov’t

C.Requirement of “Testamentary Intent”• Usually Proved by Meeting Formalities & Other Surrounding

Circumsdtances• Don’t Treat as a “Formality”• Address in Conjunction with State of Mind