Who are your Descendants?

By Jeff Roth
This may seem obvious but if you ask a person to name their descendants you would be surprised who they include in their list.

A descendant is a person or class of people described in your state’s statute of Descent and Distribution and derived under old civil law. In Ohio, the code section is Ohio Revised Code 2105.06. This section of law is always present and if ever there are no valid directions given by you, this law will prevail. Under common law there are lineal descendants and collateral descendants.

A lineal descendant starts with your child and continues with your grandchild, great grandchild and on as determined by direct blood relation. Collateral descendants are those related by blood such as parents or siblings. If a sister or brother is deceased the line also proceeds down to nieces, nephews into future generations. Why do we concern ourselves with this list of people? If you fail to provide a will, trust or other documentation for distribution after you die, the State of Ohio’s law of descent and distribution will control who will receive your assets. This may not be who you would like to receive the property but there is no room for discretion and the probate court will dictate who shall inherit.

If you have children from several marriages or a child born out of wedlock, they will stand to inherit if you have not made provisions to the contrary. If you have four children and one has predeceased, then the children of the deceased child will inherit. They inherit PER STIRPES or by standing in the shoes of their parent and collectively receive a one fourth interest. If the deceased child had five children they would each receive 20% of a one-fourth interest. This is not the courts choice but rather a combination of statute and common law. Normally this does not surprise anyone but if the deceased’s son had several children or one that only he knew about, problems arise when the unknown child or grandchild arrives for his inheritance. With a woman it is clear that the child would inherit but with a man, the child must have been proven to be his child before he can claim his share. A child begotten before his father’s death but born after death will inherit equally with other children who are living.

Common law created the lineal descent rules but Ohio law includes the surviving spouse who is not a descendent by blood. The spouse will normally take first if there are no children or a large part of the inheritance if there are children. The statue contains a complicated formula to determine the division of assets between the spouse and children. By statute, a LEGALLY adopted child or grandchild will also inherit as if born into the family. A step-child has no legal relationship to the deceased and will never inherit unless specifically named in a legal document. There are those children raised since birth that were never legally adopted and will not share in the inheritance of the deceased.

The answer to all of this is to have a will or trust and clearly define who shall inherit.

Jeff Roth is a partner with David Bacon and associate Jessica Moon of the firm ROTH and BACON with offices in Port Clinton, Upper Sandusky, Marion, Ohio and Fort Myers, Florida. All members of the firm are licensed in Ohio and Florida. Mr. Roth’s practice is limited to wealth strategy planning and elder law in both states. Nothing in this article is intended for, nor should be relied upon as individual legal advice. The purpose of this article is to provide information to the public on concepts of law as they pertain to estate and business planning. Jeff Roth can be reached at ohiofloridatrust@aol.com (telephone: 419-732-9994) copyright Jeffrey P. Roth 2017.

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