07 LC 29
2706S/AP
House
Bill 139 (AS PASSED HOUSE AND SENATE)
By:
Representatives Willard of the
49th,
Lindsey of the
54th,
Lane of the
167th,
Tumlin of the
38th,
Oliver of the
83rd,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Code Section 53-1-20 and Article 1 of Chapter 2 of Title 53 of the
Official Code of Georgia Annotated, relating, respectively, to renouncing
succession and to general provisions relative to descent and distribution, so as
to correct a cross-reference; to provide for forfeiture of an intestate share of
an estate under certain circumstances; to provide for definitions; to provide
for notice of proceedings; to provide for an appointment of a guardian ad litem
under certain circumstances; to provide for judicial proceedings and standard of
proof; to change certain provisions relating to the rules of inheritance when a
decedent dies without a will; to provide for related matters; to provide for an
effective date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 53-1-20 of the Official Code of Georgia Annotated, relating to
renouncing succession, is amended by revising subsection (f) as
follows:
"(f)(1)
Except as otherwise provided by the will or other governing instrument, a
renunciation shall cause the renounced property to pass as if the person
renouncing had predeceased the decedent or, in the case of property passing upon
exercise of a power of appointment, as if the person renouncing had predeceased
the holder of the power, even if the acceleration of a contingent remainder or
other interest results. A will or other governing instrument may otherwise
provide expressly or by implication, but the fact that a remainder or other
future interest following a renounced interest is conditioned upon surviving the
holder of such renounced interest shall not, without more, be sufficient to
indicate that such conditioned interest should not accelerate by reason of such
renunciation. Notwithstanding the foregoing, solely for the purposes of the
last clause of paragraph (5) and the last clause of paragraph (7) of subsection
(b)
(c)
of Code Section 53-2-1, any individual renouncing who is the only sibling or the
only aunt or uncle surviving the decedent shall not be deemed to have
predeceased the decedent.
(2)
Renounced property that is the subject of an attempted outright gift shall be
treated as an incomplete gift.
(3)
A renounced power over property shall be treated as if such power had not been
created with respect to the person renouncing such power.
(4)
The expression in a renunciation of an intent or desire that the property pass
to certain persons shall be considered merely precatory and shall have no legal
effect unless specifically declared to be a condition of the
renunciation."
SECTION
2.
Article
1 of Chapter 2 of Title 53, relating to general provisions relative to descent
and distribution, is amended in Code Section 53-2-1, relating to rules of
inheritance when a decedent dies without a will, by revising said Code section
as follows:
"53-2-1.
(a)
As used in this Code section, the term:
(1)(A)
'Abandon' means that a parent of a minor child, without justifiable cause, fails
to communicate with the minor child, care for the minor child, and provide for
the minor child´s support as required by law or judicial decree for a
period of at least one year immediately prior to the date of the death of the
minor.
(B)
'Abandonment' means the act of abandoning.
(2)
'Minor child' means a person who is less than 18 years of age.
(a)(b)
For purposes of this Code section:
(1)
Children of the decedent who are born after the decedent´s death are
considered children in being at the decedent´s death, provided they were
conceived prior to the decedent´s death, were born within ten months of the
decedent´s death, and survived 120 hours or more after birth;
and
(2)
The half-blood, whether on the maternal or paternal side, are considered equally
with the whole-blood, so that the children of any common parent are treated as
brothers and sisters to each other.
(b)(c)
Except as provided in subsection (d) of this Code section,
when
When
a decedent died without a will, the following rules shall determine such
decedent´s heirs:
(1)
Upon the death of an individual who is survived by a spouse but not by any child
or other descendant, the spouse is the sole heir. If the decedent is also
survived by any child or other descendant, the spouse shall share equally with
the children, with the descendants of any deceased child taking that
child´s share, per stirpes; provided, however, that the spouse´s
portion shall not be less than a one-third share;
(2)
If the decedent is not survived by a spouse, the heirs shall be those relatives,
as provided in this Code section, who are in the nearest degree to the decedent
in which there is any survivor;
(3)
Children of the decedent are in the first degree, and those who survive the
decedent shall share the estate equally, with the descendants of any deceased
child taking, per stirpes, the share that child would have taken if in
life;
(4)
Parents of the decedent are in the second degree, and those who survive the
decedent shall share the estate equally;
(5)
Siblings of the decedent are in the third degree, and those who survive the
decedent shall share the estate equally, with the descendants of any deceased
sibling taking, per stirpes, the share that sibling would have taken if in life;
provided, however, that, subject to the provisions of paragraph (1) of
subsection (f) of Code Section 53-1-20, if no sibling survives the decedent, the
nieces and nephews who survive the decedent shall take the estate in equal
shares, with the descendants of any deceased niece or nephew taking, per
stirpes, the share that niece or nephew would have taken if in
life;
(6)
Grandparents of the decedent are in the fourth degree, and those who survive the
decedent shall share the estate equally;
(7)
Uncles and aunts of the decedent are in the fifth degree, and those who survive
the decedent shall share the estate equally, with the children of any deceased
uncle or aunt taking, per stirpes, the share that uncle or aunt would have taken
if in life; provided, however, that, subject to the provisions of paragraph (1)
of subsection (f) of Code Section 53-1-20, if no uncle or aunt of the decedent
survives the decedent, the first cousins who survive the decedent shall share
the estate equally; and
(8)
The more remote degrees of kinship shall be determined by counting the number of
steps in the chain from the relative to the closest common ancestor of the
relative and decedent and the number of steps in the chain from the common
ancestor to the decedent. The sum of the steps in the two chains shall be the
degree of kinship, and the surviving relatives with the lowest sum shall be in
the nearest degree and shall share the estate equally.
(d)
Except as provided in Code Sections 19-7-1 and 51-4-4 for the right of recovery
for the wrongful death of a child, when a minor child dies without a will, a
parent who willfully abandoned his or her minor child and has maintained such
abandonment shall lose all right to intestate succession to the minor
child´s estate and shall not have the right to administer the minor
child´s estate. A parent who has been deprived of the custody of his or
her minor child under an order of a court of competent jurisdiction and who has
substantially complied with the support requirements of the order shall not be
barred from inheriting from the minor child´s estate.
(e)
For cases in which abandonment is alleged, the moving party shall file a motion
with the probate court requesting the judge to determine the issue of
abandonment and shall serve all parties as set forth in subsection (f) of this
Code section. A hearing shall be conducted and all parties shall have the
opportunity to present evidence regarding the party´s relationship with the
decedent. The burden of proof to show an abandonment is on the person asserting
the abandonment by clear and convincing evidence.
(f)
All parties to a motion filed pursuant to subsection (e) of this Code section
shall be served in accordance with Chapter 11 of this title. If a party cannot
be personally served and the party´s interest in an estate is subject to
forfeiture pursuant to subsection (d) of this Code section, the judge shall
appoint a guardian ad litem for the party. If a party cannot be personally
served, the citation shall also be published in the newspaper in which
sheriff´s advertisements are published in the county where the party was
last known to reside.
(g)
In the event that a parent is disqualified from taking a distributive share in
the estate of a decedent under subsection (d) of this Code section, the estate
of such decedent shall be distributed in accordance with subsection (c) of this
Code section as though the parent had predeceased the
decedent."
SECTION
3.
This
Act shall become effective on July 1, 2007.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.