Deceased has 2 living daughters, 3 granchildren and her sister, age 89, is living. We want to know if the sister will be a party to the award, if any.
In Massachusetts, only heirs-at-law (legal term) acquire rights in a decedent's estate if the estate passes without a will (i.e., by "intestacy"). Mass. Gen. L. ch. 190B spells out how property passes by intestacy:
Section 2-103. [Share of Heirs Other Than Surviving Spouse.]
Any part of the intestate estate not passing to the decedent’s surviving spouse under section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(1) to the decedent’s descendants per capita at each generation;
(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them per capita at each generation;
(4) if there is no surviving descendant, parent, or descendant of a parent, then equally to the decedent’s next of kin in equal degree; but if there are 2 or more descendants of deceased ancestors in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote. Degrees of kindred shall be computed according to the rules of civil law.
So in Massachusetts, assuming your mother's spouse is no longer alive, an award to your (deceased) mother would pass to your mother's descendants "per capita at each generation." A “per capita” distribution splits an estate into shares that equal the number of descendants of the deceased in the first generation that has any survivors. So under Massachusetts law, any award made to your (deceased) mother (assuming the award becomes part of her estate that passes by intestacy, and not by will) would go in equal shares to her 2 living daughters.
Note that your mother's sister may have a legal claim, e.g., for loss of consortium (loss of her sister's society) and so be entitled to an award outright. But my answer really contemplates the situation where no will exists and the award becomes part of the estate.
New Jersey law should be consulted to obtain a meaningful result in your case.
Attorney Horan is licensed to practice in Massachusetts. The response provided here is informational only, not legal advice, and does not create an attorney-client relationship.
The distribution to an estate in NJ is governed by the intestacy statute:
3B:5-4. Intestate shares of heirs other than surviving spouse or domestic partner.
Any part of the intestate estate not passing to the decedent's surviving spouse or domestic partner under N.J.S.3B:5-3, or the entire intestate estate if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:
a. To the decedent's descendants by representation;
b. If there are no surviving descendants, to the decedent's parents equally if both survive, or to the surviving parent, except as provided in section 4 of P.L.2009, c.43 (C.3B:5-14.1);
c. If there are no surviving descendants or parent, to the descendants of the decedent's parents or either of them by representation;
The children of the decedent are the estate under the statute and will be the only beneficiaries to any proceeds of the estate.
Recognized by the New Jersey Supreme Court as a Certified Civil Trial Attorney, Darren Kayal and the Law Firm of Rudolph & Kayal are not providing you with legal advice and do not represent you. These are opinions only, and you should not rely on these opinions. Please consult a competent attorney before deciding on any course of action. Rudolph & Kayal, 800 The Plaza, Sea Girt, NJ.
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