§ 2104. Rules of succession
Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 20 Pa.C.S.A. Decedents, Estates and FiduciariesEffective: July 15, 2002
Effective: July 15, 2002
20 Pa.C.S.A. § 2104
§ 2104. Rules of succession
The provisions of this chapter shall be applied to both real and personal estate in accordance with the following rules:
(1) Taking in different degrees.--The shares passing under this chapter to the issue of the decedent, to the issue of his parents or grandparents or to his uncles or aunts or to their children, or grandchildren, shall pass to them as follows: The part of the estate passing to any such persons shall be divided into as many equal shares as there shall be persons in the nearest degree of consanguinity to the decedent living and taking shares therein and persons in that degree who have died before the decedent and have left issue to survive him who take shares therein. One equal share shall pass to each such living person in the nearest degree and one equal share shall pass by representation to the issue of each such deceased person, except that no issue of a child of an uncle or aunt of the decedent shall be entitled to any share of the estate unless there be no relatives as close as a child of an uncle or aunt living and taking a share therein, in which case the grandchildren of uncles and aunts of the decedent shall be entitled to share, but no issue of a grandchild of an uncle or aunt shall be entitled to any share of the estate.
(10) Requirement that heir survive decedent for five days.--Any person who fails to survive the decedent by five days shall be deemed to have predeceased the decedent for purposes of intestate succession and the decedent's heirs shall be determined accordingly. If the time of death of the decedent or of a person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir survived the decedent by five days, that person shall be deemed to have failed to survive for the required period. This section shall not be applied where its application would result in a taking by the Commonwealth under section 2103(6) (relating to shares of others than surviving spouse).
(11) Intestacy following valid prior estate.--In the event of an intestacy occurring at the termination of a valid prior estate, the identity and shares of the intestate heirs then entitled to take shall be ascertained as though the death of the testator, settlor or grantor had occurred at the time of the termination of the prior estate.
1972, June 30, P.L. 508, No. 164, § 2, eff. July 1, 1972. Amended 1976, July 9, P.L. 551, No. 135, § 4, imd. effective; 1978, April 18, P.L. 42, No. 23, § 1, effective in 60 days; 2002, May 16, P.L. 330, No. 50, § 2, effective in 60 days.
JT. ST. GOVT. COMM. COMMENT--1947
Paragraph (1): This appears as the first rule of descent to eliminate any question concerning the manner in which the shares shall be divided. The 1917 act refers to “representation” and to rules of representation in numerous places, including 7(d)3 (descendants of intestate), 9(d) (descendants of brothers and sisters), 11 (general rule of limitation of representation), 12(d) (issue of grandparents) and 19 (persons in the same degree of consanguinity). Much of the cumbersome language of the places referred to is now avoided by the provisions of section 3 together with this clause (1) of section 4.
Definition of the words “by representation” is not needed because they are a term of art well known to lawyers and about which there can be no dispute except as to the top level at which the stirpital distribution starts. See 2 Blackstone 217. The definition given here covers that question.
Paragraph (4): No general provision is made to the effect that heirs and next of kin with this exception are determined as of the date of decedent's death because it is well established that real estate descends directly to heirs at the moment of death (Wolfe v. Lewisburg Trust & Safe Deposit Co., 305 Pa. 583), and that the equitable rights of the next of kin in personalty are similarly vested at the moment of death. See Brothers Est., 156 Pa.Super. 292.
Paragraph (7): This takes the place of section 19 of the 1917 act which reads:
“Section 19. Wherever real or personal estate shall descend to or be distributed among several persons, whether lineal or collateral heirs or kindred standing in the same degree of consanguinity to the intestate, if there shall be only one of such degree, he shall take the whole of such estate; and, if there shall be more than one, they shall take in equal shares, and, if real estate, shall hold the same as tenants in common.” Cf. Act of 1705, 1 Sm.L. 31, Section 2, 68 PS 102 [repealed].
The exception of property owned by entireties is necessary for clarity. When the whole title is received by husband and wife, as in the case of parents, they hold by the entireties: Barati's Est., 89 Pitts. 84. The possibility that a question might arise when property goes to three grandparents is prevented by referring to “shares therein”. The two who are husband and wife should take their undivided interest as tenants by the entireties.
Paragraph (8): Since the Act of February 23, 1791, 68 PS 22, et seq. [repealed as to wills and inheritances in 1947; see 20 Pa.C.S. § 2501], Pennsylvania has recognized the right of aliens to dispose of and receive Pennsylvania property by will or descent, and no distinction is made between nationals of enemy or of friendly countries except as they may reside in enemy-occupied territory: Gregg's Est., 266 Pa. 189, cert. den. 252 U.S. 588. This clause (7) takes the place of the Act of 1791 which is repealed in section 16(1) insofar as it relates to inheritance.
Paragraph (9): This is based on section 28 of the Model Probate Code. There is no similar provision in Pennsylvania law. There are no Pennsylvania cases directly in point. In Morgan v. Reel, 213 Pa. 81, it was held that a grandchild adopted by a grandparent cold inherit as a child only, but the case turned on an interpretation of the Adoption Act and therefore is not squarely in point. Therefore it seemed advisable to make provision for cases of his kind, although they are rare. An illustration is:
A and B, brothers, marry C and D, sisters. A and C have a child X, and a third brother has a child Y. Suppose a child of B and D dies leaving only first cousins as next of kin. X would be a first cousin through both his father and his mother. Y would be a first cousin through one line only, that of his father.
JT. ST. GOVT. COMM. COMMENT--1976
These amendments are for clarification purposes.
Paragraph (10) is derived from Section 2-104 of the Uniform Probate Code. It accomplishes the result typically provided for in a will in the case of a common accident situation, in which several members of the same family are injured and die within a few days of each other.
JT. ST. GOVT. COMM. COMMENT--2002
This is intended to both resolve possible inconsistencies in judicial authority and adopt in intestacy situations the same practical solution as was previously reached in section 2514(4) relating to the time of ascertaining the class in a gift under a will to heirs or next of kin.
HISTORICAL AND STATUTORY NOTES
Act 1976-135 legislation
The 1976 amendment, in the section heading, substituted “succession” for “descent”, and added par. (10).
Act 1978-23 legislation
The 1978 amendment substituted “pass” and “passing” for “descend” and “descending” throughout section.
Section 9 of 1978, April 18, P.L. 42, No. 23, provides that the act shall take effect in 60 days and shall apply only to decedents dying after the effective date.
Act 2002-50 legislation
Act 2002-50, § 2, added subsec. (11).
Section 14(b)(2) of 2002, May 16, P.L. 330, No. 50, effective in 60 days, provides that “[t]he amendment of 20 Pa.C.S. § 2104 shall apply to intestacies occurring on or after the effective date of this act, even if the trust became irrevocable before the effective date of this act.”
1917, June 7, P.L. 429, §§ 7, 9, 11 to 13 and 18 to 20 (20 P.S. §§ 56, 62 to 65, 67, 72 to 75 and 131 to 133).
1947, April 24, P.L. 80, § 4 (20 P.S. § 1.4).
1957, July 10, P.L. 623, § 1.
1959, Dec. 10, P.L. 1747, No. 652, § 1.
1965, Dec. 22, P.L. 1191, § 1.
1967, Oct. 9, P.L. 420, § 2.
20 Pa.C.S.A. § 2104, PA ST 20 Pa.C.S.A. § 2104
Current through 2018 Regular Session Act 76
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