Each week Jerry Shiles and I talk about how to achieve your estate and financial goals through careful planning. Have you ever wondered what would happen to your property if you do no estate planning at all? How well do you know and understand the State of Oklahoma’s intestacy scheme? The following "True/False" quiz will test your understanding and illustrate Oklahoma’s intestacy laws:

Question 1-When a married person with no children dies without a Will, all property passes to his or her surviving spouse.

False. Property is classified based on when and how it was acquired. All "joint industry" property passes to the surviving spouse if the decedent has no "issue", meaning no surviving descendants. Joint industry property is that acquired by the efforts of either spouse during the marriage. Non-joint industry property, which means property acquired prior to the marriage or by gift or inheritance during the marriage, passes one third each to the surviving spouse, and each parent or if none survive to the decedent’s siblings.

Question 2-When a married person with children dies without a Will, all property passes to his or her surviving spouse.

False. The share of the decedent’s property the spouse will take depends on whether the children are his, hers or theirs. If all children of the decedent are also children of the surviving spouse, then the surviving spouse will take half of the property acquired by joint industry and half of the decedent’s joint industry property. The children will take equal shares of the remaining halves. Any deceased child with living descendants would also be entitled to take the share represented by their ancestor.

Question 3-When a married person with children from outside the marriage dies without a Will, the property goes half to his or her children and half to the surviving spouse.

False. If the decedent has children that are not those of the surviving spouse, there are noticeable differences in the intestate distribution of property. The surviving spouse will still receive one-half of all joint industry property. However, with regard to the decedent’s separate property, the surviving spouse will take an equal share with all of the decedent’s living children and deceased children with living descendants.

This distribution scheme can be best understood by illustration. For example, if a husband and wife have two children together and the husband has two children from a prior marriage, if the husband dies and is survived by the wife, their two children, one of his children from a prior marriage, and the one grandchild of his child from the prior marriage who predeceased him, then his property would be distributed as follows: His wife will receive one half of all joint industry property. The other half of the husband’s joint industry property would be divided into four equal shares. Each of his surviving children would ultimately receive one eighth of all joint industry property (one fourth share of the one half not passing to the surviving spouse). The grandchild receives the share his father would have taken if he had survived the decedent. With regard to the decedent’s joint industry property, the surviving spouse will take a share equal to that of the decedent’s children. Again, because the predeceased child was survived by a child, this child will take his father’s share. This gives us a total of 5 equal shares, one for the surviving spouse, one for each of the three living children, and one for the deceased child, which in this case passes to the grandchild.

Question 4-When a single person with children dies without a will, all property goes to his or her children.

True. When an unmarried person dies, his property passes to his surviving children and to the surviving grandchildren of any deceased children. For example, consider a fact pattern where a father dies without a surviving spouse and with three living children and two predeceased children, only one of whom has two surviving grandchildren. All of the father’s property is divided into four equal shares, one each for the living children and one share for the deceased child who was survived by the two grandchildren. The living children each take one fourth of the estate. The surviving grandchildren of the predeceased child take equal shares of their parent’s one fourth interest, leaving them with one eighth of the decedent’s estate.

Question 5-When a single person dies with no children (living or deceased), all property goes to his or her parents.

True. This is a true statement so long as the decedent is survived by his parents. You must survive the decedent to take by intestate succession. In this case, if the decedent survived by both parents then all property passes one half each to his mother and father.

Question 6-Undocumented loans or gifts made to a child during his or her lifetime are automatically deducted from their share of the estate.

False. Undocumented loans or gifts are not accounted for in allocating the decedent’s property. If you want a loan or gift to a child to be deducted from his or her share of the estate, you must say so in writing by including language to that effect in either the promissory note, conditional gift, or in your Will, or get a written statement from the recipient of the loan or gift stating that it was intended to have that effect.

Oklahoma’s intestacy statutes are merely the default rules, and need not apply if you choose to direct the passing of your property by Will, Trust, by special forms of ownership such as joint tenancies or for certain property by beneficiary designations. Except for the special limited exceptions regarding support requirements for your spouse and minor children, which I will discuss in a later article, you may include and exclude whomever you choose in a Will or Trust.

You have the right to designate to whom your property passes at your death by writing a Will. The state also provides very specific requirements for the drafting and execution of Wills, as discussed in prior articles. If the state statutes discussed above do not reflect the distribution you desire of your property, contact an attorney to aid you with your estate planning. If by chance the state statutes do represent your wishes for your property, you should still consider executing a Will, because laws can and do change. Any direction that you can give to your loved ones will be of great comfort to them during the difficult time of your estate administration.

© Sarah J. Lane 2003

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