UBE Intestate Succession
Last updated: May 2, 2026
Intestate Succession questions are one of the highest-leverage areas to study for the UBE. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.
The rule
When a decedent dies without a valid will (wholly or partially intestate), the probate estate passes under the state's intestacy statute, which the Uniform Probate Code (UPC §§ 2-101 to 2-114) supplies as the majority default. The surviving spouse takes a statutorily-defined share that depends on whether the decedent left descendants and whether those descendants are also descendants of the surviving spouse; the balance passes to descendants by representation, and if none, up the parental line to parents, then to descendants of parents, then to grandparents and their descendants. Heirs must survive the decedent by 120 hours (UPC § 2-104), and adopted children inherit from adoptive parents (and generally not from biological parents, with limited stepparent-adoption exceptions under UPC § 2-119).
Elements breakdown
Surviving Spouse's Share (UPC § 2-102)
A surviving spouse takes a statutorily-fixed share that varies based on the existence and parentage of descendants and surviving parents.
- Valid marriage at decedent's death
- Spouse survives by 120 hours
- Share calculated under UPC § 2-102 tiers
Common examples:
- Entire estate if no descendant or parent survives, or if all surviving descendants are also descendants of the spouse and spouse has no other descendants
- First $300,000 plus 3/4 of balance if no descendants but a parent survives
- First $225,000 plus 1/2 of balance if all descendants are also spouse's but spouse has other descendants
- First $150,000 plus 1/2 of balance if decedent has descendants who are not spouse's
Descendants Take by Representation (UPC § 2-106)
If no spouse takes the entire estate, the remainder passes to the decedent's descendants per capita at each generation.
- Estate divided at first generation with living takers
- Equal shares to living members of that generation
- Deceased members' shares pooled
- Pooled shares divided equally among next-generation takers
Parents and Collateral Heirs (UPC § 2-103)
If no spouse and no descendants survive, the estate passes up the parental line, then to collaterals.
- First to surviving parent(s) equally
- Then to descendants of parents (siblings, nieces/nephews) by representation
- Then half to maternal and half to paternal grandparents or their descendants
- Otherwise to deceased spouse's descendants (UPC § 2-103(b)) before escheat
120-Hour Survival Requirement (UPC § 2-104)
An heir who fails to survive the decedent by 120 hours is treated as having predeceased the decedent for intestacy purposes.
- Heir must outlive decedent by at least 120 hours
- Survival proven by clear and convincing evidence
- Treated as predeceased if requirement unmet
- Does not apply if it would cause escheat
Adopted Children (UPC §§ 2-118, 2-119)
Adoption creates a parent-child relationship for inheritance with the adoptive family and generally severs it with the genetic family.
- Adopted child inherits from and through adoptive parents
- Genetic parent-child relationship severed at adoption
- Stepparent adoption preserves child's right to inherit from genetic parent
- Adoption by relative after both genetic parents die preserves inheritance from genetic relatives
Nonmarital Children (UPC § 2-117)
A parent-child relationship exists between a child and the genetic parents regardless of marital status.
- Genetic parentage establishes inheritance rights
- Marriage of parents not required
- Parent who refused to acknowledge or abandoned child may be barred (UPC § 2-114)
Advancements (UPC § 2-109)
A lifetime gift to an heir is treated as an advancement against the heir's intestate share only if specifically declared.
- Decedent declared in contemporaneous writing it is an advancement
- Or heir acknowledged in writing it is an advancement
- Valued as of date heir received possession or decedent's death, whichever first
- Hotchpot calculation if applied
Slayer Rule (UPC § 2-803)
A person who feloniously and intentionally kills the decedent forfeits all benefits from the decedent's estate.
- Felonious and intentional killing
- Treated as having disclaimed/predeceased
- Conviction is conclusive; civil court may find by preponderance absent conviction
Disclaimer (UPC § 2-1106)
An heir may disclaim an intestate share, and the disclaimant is treated as having predeceased the decedent.
- Written, signed disclaimer
- Delivered to personal representative
- Disclaimant treated as predeceased
- Disclaimed share passes as if disclaimant predeceased
Common patterns and traps
The Blended-Family Spouse Cut
The decedent dies survived by a spouse and at least one descendant who is not also a descendant of the spouse (a child from a prior relationship). Candidates instinctively give the spouse the entire estate or half, but UPC § 2-102(4) actually limits the spouse to $150,000 plus one-half of the balance. The presence of a single non-mutual descendant flips the spouse's share dramatically.
An answer choice that says the spouse takes the entire estate, or that the spouse and children split equally, when the facts disclose a stepchild relationship.
Per Stirpes vs. Per Capita at Each Generation
The UPC (§ 2-106) uses per capita at each generation: the estate is first divided at the closest generation with a living taker, and shares of deceased members at lower generations are pooled and re-divided equally. Strict per stirpes (the common-law/minority approach) instead divides at the children's generation regardless of whether anyone there is alive, with each line keeping its own pool. Most candidates default to strict per stirpes from 1L Wills class and miss the UPC pooling step.
An answer choice that gives unequal shares to grandchildren in different family lines when the UPC would equalize them through pooling.
The 120-Hour Trap
Under UPC § 2-104, an heir who fails to outlive the decedent by 120 hours is treated as predeceased. Candidates either ignore this rule or apply it to will beneficiaries (where UPC § 2-702 has its own 120-hour rule) without noticing whether the question is about intestacy. Watch for car accidents, simultaneous death scenarios, and short-survival fact patterns.
An answer choice that distributes through a barely-surviving heir's estate when the 120-hour rule would skip them entirely.
The Slayer Pretends to Predecease
A slayer (UPC § 2-803) is treated as having disclaimed/predeceased the decedent. Candidates sometimes give the slayer's share to the slayer's estate or to the slayer's creditors; the correct treatment is that the share passes as if the slayer were dead, often benefitting the slayer's own descendants. Conviction is conclusive, but a civil court can find the killing by a preponderance even without conviction.
An answer choice that escheats the slayer's share, or one that funnels it back through the slayer's estate, instead of distributing as if the slayer predeceased.
Adoption Cuts the Genetic Line
Under UPC § 2-119, adoption generally severs the parent-child relationship with the genetic parents for inheritance purposes. The major exception is stepparent adoption: when the adopting parent is the spouse of a genetic parent, the adopted child still inherits from and through the other genetic parent. Candidates miss this when an adopted-out child appears in a genetic relative's intestacy.
Advancements Require Writing
At common law, any substantial lifetime gift to a child was presumed an advancement. The UPC (§ 2-109) reverses this presumption: a lifetime gift counts as an advancement only if the decedent declared it in a contemporaneous writing or the heir acknowledged it in writing. Candidates apply the common-law presumption and reduce an heir's share when the UPC would not.
An answer choice that performs a hotchpot calculation based on an oral statement or an uncorroborated family understanding.
How it works
Start every intestacy problem by asking three questions in order: (1) Is there a surviving spouse, and if so, what is the spouse's UPC § 2-102 share given the descendants who survive? (2) After the spouse takes, does anything remain for descendants by representation? (3) If no spouse and no descendants, climb the parental ladder to parents, then siblings/nieces/nephews, then grandparents and their descendants. For example, if Patel dies intestate survived by his wife Reyes and two children—one of whom is Reyes's child and one of whom is from a prior relationship—Reyes does not take the entire estate. Under UPC § 2-102(4), because Patel has a descendant who is not also Reyes's descendant, Reyes takes the first $150,000 plus one-half of the balance, and the remaining half is divided between the two children by representation. Apply the 120-hour rule before distributing, treat any predeceased heir's share under the per-capita-at-each-generation method, and check for slayer, disclaimer, or advancement issues that reshape the distribution.
Worked examples
Under the Uniform Probate Code, how is Liu's $750,000 probate estate distributed?
- A Patel takes the entire $750,000 because she is the surviving spouse and all of Liu's children are adults.
- B Patel takes $375,000, and Sofia and Marcus each take $187,500.
- C Patel takes $450,000 (the first $150,000 plus one-half of the remaining $600,000), and Sofia and Marcus each take $150,000. ✓ Correct
- D Patel takes $487,500 (the first $225,000 plus one-half of the remaining $525,000), and Sofia and Marcus each take $131,250.
Why C is correct: Because Marcus is a descendant of Liu but not of Patel, UPC § 2-102(4) governs: the surviving spouse takes the first $150,000 plus one-half of the balance ($150,000 + ½ × $600,000 = $450,000). The remaining $300,000 passes to Liu's descendants by representation under UPC §§ 2-103(a)(1) and 2-106, splitting equally between Sofia and Marcus at $150,000 each. The presence of a single non-mutual descendant triggers tier (4), even though one child is Patel's.
Why each wrong choice fails:
- A: This answer assumes the spouse always takes everything, ignoring that Marcus is not Patel's descendant. UPC § 2-102(1) gives the spouse the entire estate only when all of decedent's descendants are also descendants of the spouse and the spouse has no other descendants—not the case here. (The Blended-Family Spouse Cut)
- B: This applies a flat 50/50 split between spouse and descendants, which is neither the UPC formula nor any common spouse-share rule. The UPC always uses a base dollar amount plus a fractional share, never a clean half. (The Blended-Family Spouse Cut)
- D: This applies UPC § 2-102(3)—first $225,000 plus ½—which governs when all of decedent's descendants are also descendants of the spouse but the spouse has other descendants. The facts are the opposite: Liu has a non-mutual descendant (Marcus), so tier (4) applies, not tier (3). (The Blended-Family Spouse Cut)
Under the Uniform Probate Code's per-capita-at-each-generation system, what does Frankie receive?
- A $60,000, because Beto's one-third share passes entirely to Beto's only child Frankie.
- B $80,000, because the deceased children's shares are pooled and divided equally among the three grandchildren. ✓ Correct
- C $120,000, because grandchildren take equally with surviving children.
- D $90,000, because Frankie inherits Beto's one-quarter share under per stirpes.
Why B is correct: Under UPC § 2-106, the estate is first divided at the closest generation containing a living taker—the children's generation—into three shares of $120,000 each. Carlos takes his $120,000 outright. The shares of Anya and Beto (totaling $240,000) are pooled and divided equally among the three grandchildren at the next generation, giving Dani, Eli, and Frankie $80,000 each. Per capita at each generation equalizes treatment of grandchildren who stand in the same generational position.
Why each wrong choice fails:
- A: This applies strict per stirpes, giving Frankie all of Beto's one-third share. The UPC rejects strict per stirpes for intestacy and pools the predeceased children's shares before redistributing to the grandchildren. (Per Stirpes vs. Per Capita at Each Generation)
- C: This treats grandchildren as taking in their own right alongside Carlos, which would be a per capita system at every generation including the children's. The UPC divides first at the closest generation with a living taker, so Carlos takes his full one-third before grandchildren share what's left. (Per Stirpes vs. Per Capita at Each Generation)
- D: This both invokes per stirpes by name and miscalculates—Beto's share would be $120,000 (one-third), not $90,000 (one-quarter). The UPC does not use per stirpes, and even within per stirpes the math here is wrong. (Per Stirpes vs. Per Capita at Each Generation)
Who takes Patel's $400,000 probate estate?
- A Reyes takes $250,000 (first $225,000 plus one-half of the remaining $50,000), and Liu's estate—passing to Garcia—takes $150,000.
- B Reyes takes the entire $400,000 because Liu failed to survive Patel by 120 hours and is treated as having predeceased Patel. ✓ Correct
- C Reyes takes $200,000 and Liu's estate takes $200,000, because Liu survived Patel and inherited his intestate share before dying.
- D Garcia takes the entire $400,000 because Liu inherited from Patel and devised everything to Garcia.
Why B is correct: Under UPC § 2-104, an heir who fails to survive the decedent by 120 hours is treated as having predeceased the decedent. Liu died only 96 hours after Patel, so Liu is deemed to have predeceased Patel for intestacy purposes. With Liu treated as predeceased and leaving no descendants, Patel has no surviving descendants. Under UPC § 2-102(1)(ii), because all of Patel's descendants (none surviving) are also descendants of Reyes and Reyes has no other descendants, Reyes takes the entire $400,000.
Why each wrong choice fails:
- A: This applies UPC § 2-102(3) (spouse's share when all descendants are mutual but spouse has others) without first checking the 120-hour rule. Once § 2-104 deems Liu predeceased, there are no surviving descendants at all, so the tiered descendant-based formulas don't apply. (The 120-Hour Trap)
- C: This treats Liu as having actually inherited because he was technically alive at Patel's death. The 120-hour rule overrides actual survival—Liu's intestate share never vests because he failed the survival period. (The 120-Hour Trap)
- D: Same flaw as choice C, plus it ignores the spouse's share entirely. Even if Liu had inherited, Reyes would have taken her § 2-102 share before any pass-through to Garcia. Once the 120-hour rule applies, no share ever flowed to Liu in the first place. (The 120-Hour Trap)
Memory aid
SPADE: Spouse first (§ 2-102 tier), Per capita at each generation for descendants, Ascend to parents/collaterals if no descendants, Disqualify slayers and non-survivors (120 hours), Examine adoption/advancement/disclaimer overlays.
Key distinction
The single biggest trap is the spouse's share when the decedent has descendants who are NOT also the surviving spouse's descendants—UPC § 2-102(4) cuts the spouse down to $150,000 + ½, not the entire estate. Memorize all four § 2-102 tiers cold; they are the most heavily-tested numbers in the subject.
Summary
Intestate succession distributes the probate estate under the UPC's tiered spouse share, then to descendants by representation (per capita at each generation), then up the parental line, subject to the 120-hour survival rule and overlays for slayers, disclaimers, adoption, and advancements.
Practice intestate succession adaptively
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Start your free 7-day trialFrequently asked questions
What is intestate succession on the UBE?
When a decedent dies without a valid will (wholly or partially intestate), the probate estate passes under the state's intestacy statute, which the Uniform Probate Code (UPC §§ 2-101 to 2-114) supplies as the majority default. The surviving spouse takes a statutorily-defined share that depends on whether the decedent left descendants and whether those descendants are also descendants of the surviving spouse; the balance passes to descendants by representation, and if none, up the parental line to parents, then to descendants of parents, then to grandparents and their descendants. Heirs must survive the decedent by 120 hours (UPC § 2-104), and adopted children inherit from adoptive parents (and generally not from biological parents, with limited stepparent-adoption exceptions under UPC § 2-119).
How do I practice intestate succession questions?
The fastest way to improve on intestate succession is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the UBE; start a free 7-day trial to see your sub-topic mastery climb in real time.
What's the most important distinction to remember for intestate succession?
The single biggest trap is the spouse's share when the decedent has descendants who are NOT also the surviving spouse's descendants—UPC § 2-102(4) cuts the spouse down to $150,000 + ½, not the entire estate. Memorize all four § 2-102 tiers cold; they are the most heavily-tested numbers in the subject.
Is there a memory aid for intestate succession questions?
SPADE: Spouse first (§ 2-102 tier), Per capita at each generation for descendants, Ascend to parents/collaterals if no descendants, Disqualify slayers and non-survivors (120 hours), Examine adoption/advancement/disclaimer overlays.
What's a common trap on intestate succession questions?
Giving the spouse the entire estate when decedent has a child from outside the marriage
What's a common trap on intestate succession questions?
Using strict per stirpes when the UPC mandates per capita at each generation
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