Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P45 pot

in the first year, $160 (20 percent of the balance, $800) the second year, and so on. As soon as the amount of depreciation under the declining- balance method would be less than that under the straight-line metho d (in our example, $100), the straight-line method is used to finish depreciating the asset. Another method of accelerating deprecia- tion is the sum-of-the-years method. This is calculated by multiplying an asset’s depreciable basis by a particular fraction. The fraction used to determine the deductible amount is figured by adding the number of years of the asset’s useful life. For example, for a 10-year useful life span, one would add 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, to arrive at 55. This is the denominator of the fraction. The numerator is the actual number of useful years for the machine, 10. The fraction is thus 10/55. This fraction is multiplied by the depreciable basis ($1,000) to arrive at the depreciation deduction for the first year. For the second year, the fraction 9/55 is multiplied against the depreciable basis, and so on until the end of the asset’s useful life. Sum-of-years is a more gradual form of accelerated depreciation than declining-balance depreciation. Depreciation is allowed by the government as a reward to those investing i n business. In 1981, the A cce lerated Cost Recovery System (ACRS) (I.R.C. § 168) was authorized by Congress for use as a tax accounting method to recover capital costs for most tangible depreciable property. ACRS uses accelerated methods applied over predetermined recovery periods shorter than, and unrelated to, the useful life of assets. ACRS covers depreciation for most depreciable prop- erty, and more quickly than prior law permitted. Not all property has a predetermined RATE of depreciation under ACRS. The INTERNAL REVENUE CODE indicates which assets are covered by ACRS. FURTHER READINGS Brestoff, Nelson E. 1986. How to Write Off Your Down Payment. New York: Cliff’s Notes. “Depreciation.” 2004–2009. AccountingCoach, LLC. Avail- able online at http://www.accountingcoach.com/ online-accounting-course/11Xpg01.html; website home page: http://www.accountingcoach.com (accessed September 2, 2009). Hudson, David M., and Stephen A. Lind. 1994. Black Letter Series: Federal Income Taxation. 10th ed. Eagan, Minn.: West. CROSS REFERENCES Income Tax; Taxable Income. DEPUTY A person duly authorized by an officer to serve as his or her substitute by performing some or all of the officer’s functions. A deputy sheriff is designated to act on behalf of the sheriff in regard to official business. A general deputy or undersheriff, pursuant to an appointment, has authority to execute all of the regular duties of the office of sheriff and serves process without any special authority from the sheriff. A special deputy, who is an officer pro hac vice (Latin for “for this turn”), is appointed to render a special service. A special deputy acts under a specific, rather than a general, appoint- ment and authority. CROSS REFERENCE Service of Process. DERIVATIVE ACTION A lawsuit brought by a shareholder of a corporation on its behalf to enforce or defend a lega l right or claim, which the corporation has failed to do. A derivative action, more popularly known as a stockholder’s derivative suit, is derived from the primary right of the corporation to seek redress of legal grievances through the courts. The PROCEDURE to be followed in such an action is governed by the rules of federal CIVIL PROCEDURE and state provisions, where applicable. DERIVATIVE EVIDENCE Facts, information, or physical objects that tend to prove an issue in a criminal prosecution but which are excluded from consideration by the trier of fact because they were learned directly from information illegally obtained in violation of the constitutional guarantee against unrea- sonable searches and seizures. DERIVATIVE EVIDENCE is INADMISSIBLE as proof because of the application of the FRUIT OF THE POISONOUS TREE doctrine, which treats the original evidence and any evidence derived from it as tainted because of the illegal way in which it was obtained by agents of the government. DERIVATIVES A derivative is a financial instrument that gets its value from some other underlying asset, index value, event, or condition. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 428 DEPUTY In the world of finance, there are many ways to invest money. Financial instruments categorized as derivatives are used to manage risks relative to interest rates, exchange rates, and financial instrument and commodity prices. They are legitimate financial tools, but spec- ulators frequently lose money when the value of the underlying asset adversely changes. This can lead to instability in financial markets. The level of risk in derivatives can be considerable, which makes them unsuitable for small or inexperienced investors. However, supposedly sophisticated hedge fun ds and financial institu- tions were affected disastrously in 2008 when the value of certain derivatives plummeted. There are four categories of derivatives: forward contracts, futures contracts, options, and swaps. Forward contracts are negotiated between two parties: The party agrees to buy an underlying asset and the other party agrees to sell it. The asset can be a quantity of a commodity such as grain or gold, foreign currency, or a financial instrument such as stocks and bonds. The contract sets a delivery price at specified maturity date. When the underlying asset is priced for immediate delivery, this is known as the spot price. Forward contracts are often used to hedge risk in the underlying asset. In this situation the value of the derivative contract moves in the opposite direction of the party’s underlying position and cancels out part or all of it. Forward contracts are not regulated or sold through exchanges. Futures contracts are better known deriva- tives. The major difference between forward contracts and future contracts is that futures are standardized contracts traded on regulated exchanges such as the Chicago Mercantile Ex- change. Like forward contracts, the parties agree to make or take delivery of a specified quantity of a commodity, a foreign currency, or a financial instrument at a specified price, with delivery or settlement on a specific date. Exchanges com- monly sell contracts for U.S. Treasury bonds, agricultural commodities, energy commodities, and foreign currency. Options are rights to buy or sell something. For example, the purchaser of an optio n has the right, but not the obligation, to buy or sell a specified quantity of a commodity, currency, or a financial instrument, at a specified price, during a specified period of time or on a specified date. An option may be concluded by taking delivery of the underlying asset or by payment of the specified price. There are two major kinds of option contracts. Call option contracts give the holder the right to buy an underlying asset such as quantity of stock at a set price throughout the option term . The holder pays more for the right to benefit from the appreciation in the underlying asset. Put options provide the holder with the right to sell the underlying asset at a set price throughout the option term. The holder gains as the market price of the underlying asset falls below the set price. Option contracts are a way to hedge a one-way movement in the underlying asset. Swaps are private contracts in which the parties agree to exchange cash on or before a specified date. The swaps are usually based on currency exchange rates or interest rates. How- ever, there are credit default swaps (CDS), which are viewed as a form of insurance. The purchaser of the CDS makes a series of payments to the seller. In exchange, the purchaser receives a payoff if a credit instrument, such as a bond or a loan, goes into default. The popularity of CDS skyrocketed between 1998 and 2008, becoming an estimated $55 trillion market. Speculation in derivatives is common. This is due in large part to the use of leverage, or borrowing. A speculator borrows money to purchase the derivative, in hopes that the value of the underlying asset will move in a direction favorable to the speculator. If this happens, the speculator will earn a large enough return to pay back the loan and earn a substantial profit. However, if the value of the asset moves the other way, the speculator can lose on the investm ent and not be able to pay back the loan. Such speculation was conducted by U.S. hedge funds, banks, and insurance companies in the early 2000s. The financial meltdown in the fall of 2008 on Wall Street was due in large part to speculation in derivatives. Insurance giant American International Group (AIG), which entered into perhaps $100 billion of CDS with major financial institutions, avoided collapse when the U.S. government recapitalized it with $85 billion. The government intervened because it was certain that if AIG could not pay off the CDS, banks in the U.S. and around the world that held the swaps would also collapse. Though some in Congress sought to regulate the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DERIVATIVES 429 derivatives market in the late 1990s, members of the Clinton administration and Federal Reserve chairman Alan Greenspan successfully blocked legislation. It appeared likely that Congress would regulate this market after the events of 2008. FURTHER READINGS Gasparino, Charles. 2009. The Sellout: How Three Decades of Wall Street Greed and Government Mismanagement Destroyed the Global Financial System. New York: HarperBusiness. Goodman, Peter. 2008. “Taking Hard New Look at a Greenspan Legacy.” New York Times. October 8. Morris, Charles. 2009. The Two Trillion Dollar Meltdown: Easy Money, High Rollers, and the Great Credit Crash. New York: Public Affairs. Phillips, Kevin. 2008. Bad Money: Reckless Finance, Failed Politics, and the Global Crisis of American Capitalism. New York: Viking. Sorkin, Andrew Ross. 2009. Too Big to Fail: The Inside Story of How Wall Street and Washington Fought to Save the Financial System and Themselves. New York: Viking. Varchaver, Nicholas, and Katie Benner. 2008. “The $55 Trillion Question.” Fortune. September 30. CROSS REFERENCES Banks and Banking; Bonds; Stock; Securities DEROGATION The partial repeal of a law, usually by a subsequent act that in some way diminishes its original intent or scope. Derogation is distinguishable from abro- gation, which is the total annulment of a law. v DERSHOWITZ, ALAN MORTON Scholar and constitutional authority ALAN MORTON DERSHOWITZ is a well-known, controversial, and successful U.S. appellate attorney. A professor at the Harvard School of Law, he has a reputation for taking on the cases of criminal defendants. His list of clients is a who’s who of notoriet y, ranging from wealthy socialites to a porno- graphic film star and a convicted spy. Dersho- witz has captured attention both in the court- room and out, as much for his sometimes brilliant legal strategies as for his ubiquitous books, articles, and TV appearances. A staunch defender of FIRST AMENDMENT freedoms, civil and HUMAN RIGHTS, and Jewish issues, he has earned praise and enmity for his influence on U.S. law. Dershowitz, born September 1, 1938, in Brooklyn, was raised in the orthodox Jewish area of Boro Park, New York. He attended Yeshiva University High School, where a principal advised the unexceptional but talkative student to seek a career “w here you use your mouth, not your brains” (Keegan 1992). He apparently ignored that advice, graduating magna cum laude from Brooklyn College and gaining admittance to Yale Law School. As a law student, he quickly distinguished himself: he was nam ed editor of the Yale Law Journal in his second year, and his research on the relationship of psychiatry to the law was such that Harvard offered Dershowitz a teaching position upon his graduation. Finish- ing at the top of his class in 1962, he post- poned the Harvard offer to clerk for Chief Judge David L. Bazelon, of the U.S. Court of Appeals. This clerkship was followed by another with U.S. Supreme Court Justice ARTHUR J. GOLDBERG . Appointed associate professor at Harvard Law School in 1964, Dershowitz went on to become, three years later, the youngest tenured professor in the school’s history at age 28. His specialty, CRIMINAL LAW, did not prevent him from continuing the academic research he had begun at Yale, and he coauthored the standard Alan Morton Dershowitz 1938– ▼▼ ▼▼ 1930 2000 1975 1950 ❖ ◆ ◆ ◆ ◆ ◆◆◆◆◆ 1938 Born, Brooklyn, N.Y. 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War 1962–64 Clerked for U.S. Court of Appeals Chief Judge Bazelon and Supreme Court Justice Goldberg 1964 Joined Harvard Law School faculty 1967 Psychoanalysis, Psychiatry, and the Law published 1972 Successfully defended JDL terrorist Sheldon Siegel 1969 First Supreme Court argument in I Am Curious (Yellow) film case 1976 Handled appeal of porn star Harry Reems 1982–85 Won appeal for new trial and acquittal in von Bulow case 1992–93 Handled unsuccessful appeal of boxer Mike Tyson’s rape conviction 1994–95 Served on defense team in O.J. Simpson murder trial 2002 Why Terrorism Works published 2001 Supreme Injustice: How the High Court Hijacked Election 2000 published 1999 The Advocate’s Devil published 2001 September 11 terrorist attacks ◆ 2008 The Case Against Israel’s Enemies published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 430 DEROGATION casebook Psychoanalysis, Psychiatry, and the Law (1967). He also began a lifelong immersion in liberal political issues. As protest over the VIETNAM WAR galvanized campuses around the United States, Dershowitz created a course on legal concerns raised by the war, which inspired similar courses at numerous law schools. He worked privately on behalf of several antiwar protesters, including Harvard students facing disciplinary proceedings and the antiwar leader Dr. Benjamin M. Spock. In 1972 he drafted a successful appeal for WILLIAM M. KUNSTLER,a radical lawyer convicted of CONTEMPT of court for his defense of the CHICAGO EIGHT antiwar activists at the 1968 Democratic convention. Free speech concerns animated Dershowitz to fight CENSORSHIP of PORNOGRAPHY. In his view, “There is simply no justification for government censorship of offensive material of any kind.” Even if pornography can be shown to lead to violence against women, Dershowitz opposes any controls on it. His position is that of a classic First Amendment absolutist: Fight bad speech with good speech, but do not limit speech. Dershowitz made his first U.S. Supreme Court argument in 1969, attempting to remove a Boston ban on scre enings of the interna- tionally acclaimed Swedish film I am Curious (Yellow). Championed by intellectuals such as Norman Mailer, the sexually explicit film was the first of its kind to be distributed commer- cially in the United States. Dershowitz success- fully argued before a three-judge Court that the First Amendment protected the rights of consenting adults to view whatever they chose in a discreet setting. After the Supreme Court remanded the case, the prosecution was dis- missed and the ban was lifted. The attorney took his first criminal case in 1972. His defense of Sheldon Seigel, accused of making a bomb used by the terrorist Jewish Defense League (JDL), established a pattern that Dershowitz would follow throughout his career: a commitment to civil liberties and constitutional rights regardless of the notoriety or apparent immorality of his clients. The bomb Seigel was said to have made had exploded in the Manhattan office of arts impresario Sol Hurok, killing a young woman. While associated with the JDL, Seigel had also been a government informer. When the case came to trial, the government denied making a deal protecting him from testifying against his associates. Using secret tape recordings of his client and govern- ment agents, Dershowitz destroyed the prose- cution’s claims. An appellate court ruled against forcing Seigel to testify, and the case against the JDL suspects was dismissed for lack of evidence. Dershowitz later said he cried upon realizing that he had gotten Seigel acquitted, thinking about the woman killed by the bomb. Yet the case had allowed him to challenge what he saw as systematic unconstitutionality in the govern- ment’s handling of informers. In 1976 Dershowitz handled the appeal of Harry Reems, a star in the pornographic film Deep Throat. Several years after acting in the film, Reems had been convicted on federal charges of taking part in an ongoing conspiracy to transport it across state lines. Dershowitz won a new trial for Reems, and the JUSTICE DEPARTMENT later dropped the INDICTMENT. Defending other unpopular clients has sometimes earned Dershowitz the criticism of his peers. The attorney nonetheless accepts cases few other lawyers will touch, making him, in the words of Time magazine, the “patron saint of hopeless cases . ” In 1975 he was widely criticized for agreeing to represent Bernard Alan Dershowitz. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DERSHOWITZ, ALAN MORTON 431 Bergman, a New York City nursing home operator, on appeal of his conviction for MEDICARE FRAUD and attempted BRIBERY. The press and the public had vilified Bergman for running a chain of nursing homes in which elderly patients were abused. Dershowitz tried, unsuccessfully, to have Bergman’s one-year sentence reduced to four months, arguing that the special PROSECUTOR in the case had violated a plea bargain. In 1980 Dershowitz represented two broth- ers, Ricky and Raymond Tison, who were con- victed and sentenced to die for the crime of FELONY MURDER. The brothers had helped their father, Gary Tison, escape from prison; the father subsequently took part in a murder. Dershowitz raised the question of whether the brothers could be executed for a murder they did not plan or commit. In 1987 he argued for their lives before the Supreme Court, which remanded the case and ordered a new hearing. A 1982 appeal for socialite Claus von Bulow catapulted Dershowitz to greater public atten- tion than had any of his previous endeavors. Closely watched by the press, von Bulow’s trial seemed the stuff of best-selling fiction. He had been convicted of attempting to murder his wife, heiress Martha (Sunny) Crawford von Bulow, by injecting her with insulin— presumably, to lay hands on her millions. On appeal, Dershowitz made multiple arguments for reversal or retrial. He contended that his client had been the victim of an unconstitu- tional search, that evidence had been withheld from the defense, and that new medica l evidence raised doubts about the insulin found in Crawford’s blood. The appeals court reversed von Bulow’s conviction in April 1984, and at a subsequent trial, with Dershowitz directing the defense strategy, a second jury acquitted him in 1985. The attorney wrote an account of the trial, Reversal of Fortune (1986), which later became an Academy Award-winning film. Throughout the 1980s and 1990s, Dersho- witz seldom escaped public notice for his work on behalf of a string of controversial clients. He represented, among others, Leona Helmsley, a hotel magnate convicted of TAX EVASION; Michael R. Milken, a Wall Street junk-bond financier who pleaded guilty to six felonies; Jonathan Pollard, a U.S. intelligence analyst who pleaded guilty to spying for Israel; and Mike Tyson, a former heavyweight champion who was convicted of RAPE. Dershowitz lost these appeals, but not for want of trying. His tactics routinely include a vociferous use of the media, on the assumption that judges and juries are influenced by what they see and read. Besides numerous interviews, he also has taken out full-page ads in the New York Times on behalf of clients—for example, Milken. Dershowitz was in the limelight as a member of the “Dream Team,” assembled to defend O.J. Simpson, who was acquitted of murder charges in October 1995. Like many others involved in the c ase, Dershowitz published a book, Reasonable D oubts: The C riminal J ustice System and the O.J. Simpson Case (1997). Not all Dershowitz’s clients, however, are celebrities. He c onducts PRO BONO work for those unable to afford a lawyer, let alone his reputed $400-an-hour fee. As an appellate lawyer, Dershowitz estimates his chance of losing a client’s appeal at 9 5 percent, saying, “I’m like a brain surgeon brought in after the tumor’s been discovered.” He cites constitutional concerns as his justification for his choice of clients. Others have accused him of greed and grandstanding. His one-time ally, the late Kunstler, was one such critic, bemoan- ing what he considered a former idealist’s selling out. No stranger to criticism, Dershowitz gives as well as he gets. He frequently addresses audiences, writes articles, gives press conferences, and conducts debates with his critics and those with whom he disagrees. In the mid-1980s, he attacked the Justice Department under President RONALD REAGAN as “dangerous for our constitu- tional health.” A major area of battle for him in the early 1990s was the trend on university and college campuses toward “political correctness,” which he views as stifling to free speech and detrimental to education. Denouncing the trend, Dershowitz said, “We are tolerating and teaching intolerance and hypocrisy.” Committed to working on behalf of Jewish rights, Dershowitz traveled to the Soviet Union in 1974 as part of the Soviet Jewry Defense Project. This U.S. group submitted appeals on behalf of 14 Russian Jews and two non-Jews sentenced to prison terms f or conspiracy after their emigration visas were refused. The effort helped to bring about the early release of several prisoners, who immigrated to Israel. Dershowitz also attempted to represent Russian dissident Anatoly Scharansky, but was blocked by Soviet authorities. A tireless foe of anti-Semitism IN POKER IT IS IMPOSSIBLE TO BLUFF WITH ALL YOUR CARDS SHOWING .IN LAW IT IS DIFFICULT , BUT NOT IMPOSSIBLE. —ALAN DERSHOWITZ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432 DERSHOWITZ, ALAN MORTON whose office door is decorated with hate mail, Dershowitz argued in his best-selling 1991 book Chutzpah that U.S. Jews have too long accepted being second-class citizens. Named for the Yiddish expression for brashness, Chutzpah made an impassioned plea for greater pride: “We need not be apologetic or defensive about our power in America.” The book won high praise from Nobel laureate Saul Bellow and others, although some Jewish intellectuals re- garded it as overzealous. Dershowitz continues to be a prolific and highly topical writer. In 2001 Dershowitz, a strong supporter of Al Gore’s presidential bid, published Supreme Injustice: How the High Court Hijacked Election 2000.In2002hepublished books on two subjects that were in the forefront of national attention: Why TERRORISM Works: Understanding the Threat, Responding to the Challenge and Shouting Fire: Civil Liberties in a Turbulent Age. After the September 11, 2001, terrorist attack on the World Trade Center, Dershowitz gar- nered a great deal of attention and controversy when he wrote a column in the Los Angeles Times in which he posited that if U.S. authorities were to engage in torture to extract information from prisoners, judges should have to issue “torture warrants.” In addition to his numerous writings (includ- ing more than 1,000 op ed articles), Dershowitz continues to lecture in the United States and around the world. He also delivers legal commen- tary on TV and radio shows, as well as Internet broadcasts. Dershowitz maintains his ties with Harvard Law School where he has been the FELIX FRANKFURTER Professor of Law since 1993. Dershowitz has received many awards hon- oring his work for civil and human rights. These include a Guggenheim Fellowship in 1979, a commendation from the New York Criminal Bar Association in 1981, and the WILLIAM O. DOUGLAS First Amendment Award from the ANTI- DEFAMATION LEAGUE of the B’nai Brith in 1983. He has also received honorary degrees and awards from Yeshiva University, Syracuse University, Hebrew Union College, the University of Haifa, Monmouth College, Fitchburg College, and Brooklyn College. In 1996 he received the FREEDOM OF SPEECH Award from the National Association of Radio Talk Show Hosts. As of 2009, Dershowitz continues his posi- tion at Harvard Law School. His most recent books include Preemption: A Knife that Cuts Both Ways (2006) and The Case against Israel’s Enemies: Exposing JIMMY CARTER and Others Who Stand in the Way of Peace, published in 2008. FURTHER READINGS Alan Dershowitz Web site. Available at <www.alandershowitz. com (accessed September 23, 2009). Dershowitz, Alan M. 2008. Is There a Right to Remain Silent?: Coercive Interrogation and the Fifth Amendment After 9/11. New York: Oxford Univ. Press. ———. 2005. The Case for Peace: How the Arab-Israeli Conflict can be Resolved. New Jersey: Wiley & Sons. ———. 2001. “Is There a Torturous Road to Justice?” The Los Angeles Times (November 8). DESCENT Hereditary succession. Succession to the ownership of an estate by inheritance, or by any act of law, as distinguished from purchase. Title by descent is the title by which one person, upon the death of another, acquires the real estate of the latter as an heir at law. The title by inheritance is in all cases called descent, although by statute law the title is sometimes made to ascend. The division among those legally entitled thereto of the real property of intestates. DESCENT AND DISTRIBUTION The area of law that pertains to the transfer of real property or personal property of a decedent who failed to leave a will or make a valid will and the rights and liabilities of heirs, next of kin, and distributees who are entitled to a share of the property. Origin of the Law The passage of property from ancestors to children has been recognized and enforced since biblical times. As a general rule, the law, and not the deceased person , confers the right of succession—the passing of title to a de cedent’s property—and determines who shall take INTES- TATE property. In the United States, such law is derived from the CIVIL LAW and English statutes of distributions, rather than from the COMMON LAW , which preferred the eldest male, under the doctrine of PRIMOGENITURE, and males over females. Statutes in every state prescribe the order in which persons succeed to a decedent’s property if he or she dies intestate, which means without a lawfully executed will. These statutes provide for an orderly administration by identi- fying successors to a decedent’s, also called an intestate’s, estate. They seek to imp lement the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DESCENT AND DISTRIBUTION 433 distribution that most intestates would have provided had they made wills, on the theory that most persons prefer that their property pass to their nearest relatives rather than to more remote ones. An order of preference among certain relatives of the deceased is established by the statute. If there are no relatives who can inherit the property, the estate escheats, or reverts, to the state. Persons Entitled The terms heirs, NEXT OF KIN, and distributees usually refer to the persons who by operation of law—the application of the establi shed rules of law—inherit or succeed to the property of a person intestate on his or her death. Statutes generally confer rights of inheritance only on blood relatives, adopted children, adoptive par- ents, and the surviving spouse. Line of descent is the order or series of persons who have descended one from the other or all from a common ancestor, placed in a line in the order of their birth showing the connection of all blood relatives. The direct line of descent involves persons who are directly descended from the same ancestor, such as father and son, or grandfather and grandson. Whether an adopted child can be regarded as in the direct line of descent depends upon the law in the particular jurisdiction. The collateral line of descent involves perso ns who are descended from a common ancestor, such as brothers who share the same father or cousins who have the same grandfather. Title by descent differs from title by purchase because descent involves the OPERATION OF LAW, while pu rchase involves the act or agreement of the parties. Usually direct descendants have first preference in the order of succession, followed by ascendants (persons in the collateral line of ascent), and finally, collateral heirs. Each generation is called a degree in determining the CONSANGUINITY,or blood relationship, of one or more persons to an intestate. Where the next of kin of the intestate who are entitled to share in the estate are in equal degree to the deceased, such as children, they share equally in the estate. For example, consider a mother who has two daughters, her only living relations, and dies intestate, leaving an estate of $100,000. Because the two daughters occupy the same proximity of blood relationship to their mother, they share her estate equally, each inheriting $50,000. Issue has been defined as all persons in the line of descent without regard to the degree of nearn ess or remoteness from the original source. Law Governing If at the time of death, the intestate’s estate is located in the state of his or her domicile or permanent residence, the law of that state will govern its descent and distribution. Local laws that govern the area where the property is located generally determine the descent of real property, such as land, houses, and farms, regardless of the domicile of the deceased owner. The succession to and the disposition and distribution of personal or movable prop- erty, wherever situated, are governed by the law of the domicile of the owner or intestate at the time of dea th, unless a statute in the state where the property is loc ated provides otherwise. Because the privi lege of receiving property by inheritance is not a natural right but a creation of law, the legislature of a state has plenary power, or complete authority, over the descent and distribution of property within the borders of the state subject to restrictions found in constitutions and treaties. The disposition of the property of an intestate is governed by the statutes in force at the time of death. Property Subject to Descent and Distribution As a general rule, property subject to descent and distribution includes all vested rights and interests owned by the deceased at the time of ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. REPRESENTATION IN A THEORETICAL FAMILY LINE Robert Ellen Pam David George Ruth Janet Descent and Distribution GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 434 DESCENT AND DISTRIBUTION death. However, rights or interests that are personal to the deceased, and not of an inheri- table nature, ordinarily are not subject to descent and distribution. Examples are a personal right to use land or a statutory right to contest a will. If a seller dies prior to the completion of the sale of real property, the LEGAL TITLE to land that the seller contracted to sell vests in the heirs at law on the owner’s death, subject to their obligation to convey the land to the purchaser according to the contract. A few states authorize the distribution of property among different persons according to whether it is real or personal, but this is not the general rule. Representation, Per Stirpes, Per Capita Representation is the principle of law by which the children, or their descendants, of an heir to an estate, who dies without leaving a will, have a collective interest in the intestate’s share of the property. Taking by representation means taking PER STIRPES. For example, Robert, who only has two daughters, Ellen and Pam, dies intestate, leaving an estate of $200,000 after the payment of debts and charges. Under a typical statute, Robert’s daughters are his distributees, each receiving $100,000. However, Ellen pre- deceases her father and leaves two sons, David and George. Because Ellen is not alive to take her share, there would be a per stirpes division of Robe rt’s estate, which means that Ellen ’s share of $100,000 would be divided equally between David and George, and each would receive $50,000. Pam’s $100,000 share of her father’s estate remains unaffected. Because they are brothers, the degree of blood relationship between David and George is equal; therefore, they take PER CAPITA, or equal, parts of Ellen’s share. However, they have taken per stirpes shares of Robert’s estate. Assume that George also died before his grandfather and left two daughters, Ruth and Janet, but his brother David was still alive. David would take $50,000, but Ruth and Janet would have $25,000 apiece. Pam, who is still alive, would still be entitled to $100,000, her share of Robert’s estate. The degrees of consanguinity among David and Ruth and Janet are unequal, because David is Robert’s grandchild, whereas Ruth and Janet are his great-grandchildren. David and Ruth and Janet share Ellen’s portion of Robert’sestateper stirpes. David takes 50 percent, or $50,000, whereas Ruth and Janet each take 25 percent, or $25,000, because of the unequal degrees of blood relationship to Ellen. David is one generation removed from Ellen, while Ruth and Janet are two generations removed from her. Kindred of the Half Blood The term kindred of the half blood refers to persons who share a half blood relationship with the intestate because they have only one parent in common with each other. As a general rule, kindred of the half blood inherit equally with kindred of the whole blood who have the same parents, unless expressly prohibited by statute. For example, A and B shared the same father with C and D but had a different mother. If A dies, leaving no surviving spouse, children, or parents, C and D share equally with B in A’s estate, even though C and D were of the half blood in relation to A, since they had only one parent in common. C and D inherit as if they had both the same parents as A and B. Necessary or Forced Heirs The law of forced heirship gave certain relatives, besides the spouse, an absolute LEGAL RIGHT,of which they could not be deprived by will or gift, to inherit a certain portion of the decedent’s estate. Ordinarily, a person has no right to prevent another from disposing of his or her property by gift or will to someone else. The law of forced heirship in effect in only Louisiana limits the disposition of a decedent’s property if his or her parents or legitimate children or their descendants are alive at his or her death. Such persons are expressly declared by law to be forced heirs, and a decedent cannot deprive them of the portion of an estate reserved to them by law unless there is just cause to disinherit them. Anyone else who received the property can be legally obligated to return it or to make up the portion of which the forced heirs have been deprived out of his or her own property. Designated Heirs In some jurisdictions, statutes permit a person, the designator, to name another to stand in his or her place as an heir at law in the event of his or her death. Anyone can be a designated heir, even a stranger to the designator. The statute does not grant a designated heir any status until the designation becomes effective on the dea th of the designator. The designator can revoke the designation until the time of his or her death and then designate another. After the death of the designator, a designated heir has the status GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DESCENT AND DISTRIBUTION 435 of an heir at law, and under the statute, the status of a legitimate child of the designator. For example, H designates his wife W as his heir at law. H and W are childless. H is the only child of F. F dies intestate after H’s death. The applicable statute of descent and distribution gives all of F’s property to his lineal descen- dants. W will inherit all of F’s property because she was H’s designated heir at law and is, for inheritance purposes, considered a child of H. She is, therefore, a lineal descendant of F. If the designated heir dies before the designator, his or her heirs generally will not have a right of inheritance in the designator’s intestate estate. Descendants Subject to the rights of the surviving spouse, children have superior inheritance rights com- pared to those of other blood relatives. In many jurisdictions, the same principle applies to adopted children of the intestate. Once the debts of the estate have been paid and the surviving spouse has taken his or her legal share, the remainder of the estate is apportioned in equal distributive shares, the portions specified by the law of descent and distribution, among the number of children of the decedent. The rights of the decedent’s child or children are greater than not only those of the deceased’sbrothersand sisters, nephews and nieces, and other collateral kindred but also of the deceased’sparents. Posthumous Children A POSTHUMOUS CHILD is one born after the death of its father or mother (as, for example, by Caesarean section). Both at common law and under various state statutes, a posthumous child takes as an heir and a distributee as long as it is born alive after a period of fetal existence that indicates that it was conceived before the death of the intestate father, usually a period of nine months. Some statutes require that a child be born within ten months after the death of the intestate in order to be regarded as a posthumous child. The technique of ARTIFICIAL INSEMINATION, through which a woman can be impregnated with frozen sperm months or even years after the death of the father, poses problems for courts interpret- ing posthumous child statutes. Children of Successi ve Marria ges On the death of an intestate who had children by different marriages, all of his or her c hildren take equal sharesoftheestateoncetheestatedebtshave been paid off and the surviving spouse has taken the legal portion. This method of dis- tribution applies u nless barred by statute, such as in cases where the proper ty of an intestat e was received from a deceased spouse of a former marriage. In that instance, only children of that particular marriage would inherit that property to the exclusion of children of other marriages. In a few sta tes, a slightly different distribution is made of COMMUNITY PROPERTY of the first marriage—one half of that property belonging to the deceased spouse going to the children of that marriage in equal shares, and those children together with the children of the second marriage dividing equally the other half, subject to any rights of the surviving spouse. Issues of Children Who Predecease Intestate The share that a child who dies before the intestate would have inherited if he or she had survived the intestate parent is inherited by his or her children or descendants by the right of representation in per stirpes shares. Grand- children have better inheritance rights than brothers and sisters of the intestate and their children. However, they do not inherit unless their parent, the child of the intestate, is dead. Illegitimate Children At common law, an illegitimate child was a FILIUS NULLIUS (Latin for “child of no one”) and had no right to inherit. Only legitimate children and issue could inherit an estate upon the death of an intestate parent. This is no longer the case as a result of statutes that vary from state to state. As a general rule, an illegitimate child is treated as the child of the mother and can inherit from her and her relatives and they from the child. In some jurisdictions, the illegitimate child is usually not regarded as a child of the father unless legitimated by the subsequent marriage of the parents or acknowledged by the father as his child, such as in affiliation proceedings. A legitimated child has the same inheritance rights as any other child of the parent. Many statutes permit a child to inherit from his or her fathe r if the PATERNITY is judicially established before the father’s death. In the case of Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), the SUPREME COURT OF THE UNITED STATES decided that it is unconstitutional for states to deprive an illegitimate child of the right to inherit from his or her father when he dies without leaving a will, esp ecially in cases where paternity is already established in state court proceedings prior to the father’s death. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 436 DESCENT AND DISTRIBUTION Parents Some statutes permit one or both parents of the intestate to inherit, to some extent, the property of a child leaving no issue or descendants subject to the rights of a surviving spouse. Provisions differ as to whether one or both parents take, whether they take exclusively or share with brothers and sisters, and as to the extent of the share taken. Frequently, if one parent is dead, the surviving parent takes the entire estate, both real and personal, of a deceased child who dies without issue. Some statutes provide that a surviving parent shares with the brothers and sisters. Stepchildren, Stepparents Ordinarily, a stepparent does not inherit from the estate of a deceased stepchild. Similarly, stepchildren do not inher it from their steppar- ent unless the terms of a statute grant them this right. Brothers, Sisters, and Their Descendants Brothers and Sisters If an intestate dies without a surviving spouse, issue, or parents, the dece- dent’s brothers and sisters and the children of deceased brothers and sisters will inherit the estate. Brothers and sisters inherit when and only when there are no other surviving persons having priority by virtue of statute. Their inheritance rights are subordinate to children and grand- children and the parents of the intestate in a number of jurisdictions. Nephews and Nieces Nephews and nieces usually inherit only if their parent is deceased and would have inherited if he or she had survived the intestate. Grandparents and Remote Ascendants Generally, where paternal and maternal grand- parents are next of kin to the decedent, they share equally in the estate of an intestate. Some statutes provide that where the estate descended to the intestate from his or her father, it will go to a paternal grandparent to the exclusion of a maternal grandparent. State statutes vary as to whether the grandparents all inherit, or where there are surviving aunts and uncles, as to whether they are excluded by the grandparents. There is a similar division of authority as to whether great-grandparents share with surviv- ing great-uncles and great-aunts. Remote Collaterals A COLLATERAL HEIR is one who is not of the direct line of the deceased but comes from a collateral line, such as a brother, a sister, an uncle, an aunt, a nephew, a niece, or a cousin of the deceased. People are related collaterally when they have a common ancestor, such as a parent or grand- parent. Where the property in question is within a statute directing the course of descent of property that came to the intestate by gift, devise, or descent from an ancestor, as long as they are the nearest heirs, the remote collateral heirs (for example, cousins) who share that common ancestor are entitled to inherit to the exclusion of collateral heirs who do not. Operation and Effect of a Will Rights under INTESTACY laws are only taken away by a properly executed will disposing of the testator’s entire property. These laws can, how- ever, operate in case of partial intestacy where part of the decedent’s property is not disposed of by will. Surviving Spouse The right of a surviving spouse to share in the estate of a deceased spouse arises automatically from the marital status and not from any contract, conv eyance, or other act of the spouse. Statutes conferring such rights on a surviving spouse make the spouse a statutory heir. Some statutes regulating the rights of inheritance of a surviving spouse treat property acquired by the decedent prior to the marriage differently than that acquired during the course of the marriage. Others relating to the descent of ancestral estates and property acquired by gifts do not, ordinarily, exclude a surviving spouse. Right of Surviving Wife As a general rule, modern statutes confer rights of inheritan ce on a widow. At common law, the wife was entitled to DOWER, which was a fixed interest in all the land owned by her husband during the marriage. This interest in the lands of her husband was INCHOATE during his life. She had to survive her husband before she could take possession of her interest in the property. Most states have abolished common-law dower and have replaced it with statutes allowing the surviving widow to take an elective share prescribed by statute, usually one-third or what would have gone to her by intestacy or the provision made in her spouse’s will. The extent of and the method GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DESCENT AND DISTRIBUTION 437 . heir has the status GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DESCENT AND DISTRIBUTION 435 of an heir at law, and under the statute, the status of a legitimate child of the designator. For. ALL YOUR CARDS SHOWING .IN LAW IT IS DIFFICULT , BUT NOT IMPOSSIBLE. —ALAN DERSHOWITZ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432 DERSHOWITZ, ALAN MORTON whose office door is decorated. death. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 436 DESCENT AND DISTRIBUTION Parents Some statutes permit one or both parents of the intestate to inherit, to some extent, the property of a