2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 2 - Descent and Distribution
Article 1 - General Provisions
§ 53-2-1. Rules of Inheritance When Decedent Dies Without Will; Effect of Abandonment of Child

Universal Citation: GA Code § 53-2-1 (2020)
  1. As used in this Code section, the term:
    1. "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.
    2. "Abandonment" means the act of abandoning.
    3. "Minor child" means a person who is less than 18 years of age.
  2. 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.
  3. Except as provided in subsection (d) of this Code section, 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

(Code 1981, §53-2-1, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 8; Ga. L. 2007, p. 210, § 2/HB 139; Ga. L. 2008, p. 324, § 53/SB 455.)

Law reviews.

- For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012). For article, "Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia's Same Sex Spouses," see 21 Ga. St. Bar. J. 9 (Oct. 2015). For note, "Status or Contract? A Comparative Analysis of Inheritance Rights under Equitable Adoption and Domestic Partnership Doctrines," 39 Ga. L. Rev. 675 (2005). For note, "Not Just For Kids: Why Georgia's Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults," see 43 Ga. L. Rev. 867 (2009). For note, "Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?," see 45 Ga. L. Rev. 877 (2011).

COMMENT

Subsection (a) carries forward the second sentences of former OCGA Sec. 53-4-2(4) and Sec. 53-4-2(5). Paragraph (a)(1) adds the requirement that a child of the decedent be conceived prior to the decedent's death, be born within ten months of the decedent's death, and survive birth by at least 120 hours or more to be considered an heir.

Subsection (b) replaces former OCGA Secs. 53-4-1 through 53-4-3 and differs from those Code sections in the treatment of the surviving spouse, parents of the decedent, and descendants of the siblings of the decedent. A surviving spouse is guaranteed at least one-third of the decedent's intestate estate, as opposed to one-fourth of the estate under former Sec. 53-4-2(2). While former OCGA Sec. 53-4-2(6) included a decedent's parents in the same degree as the decedent's siblings, the new Code section puts parents in a degree superior to that of siblings. Former Sec. 53-4-2(5) included in the second degree only children or grandchildren of the decedent's siblings; the new Section includes all descendants of the decedent's siblings.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1841, Cobb's 1851 Digest, p. 296, former Laws 1845, Cobb's 1851 Digest, p. 297, former Code 1868, §§ 1752 and 2448, former Code 1873, §§ 1762 and 2484, former Civil Code 1910, § 3931, and former O.C.G.A. §§ 53-4-1 and53-4-2 are included in the annotations for this Code section.

Posthumous child qualified as decedent's child.

- Decedent's posthumous, out-of-wedlock child was entitled to pursue a wrongful death claim under O.C.G.A. § 51-4-2 to the exclusion of the decedent's parents. Under the statute pertaining to descent and distribution, O.C.G.A. § 53-2-1(a)(1), the posthumous child qualified as the decedent's child and to ignore the laws of descent and distribution would run counter to the essence of a wrongful death claim; simply because the decedent's parents wished to share in any award did not render an inequitable result in light of the priority ordinarily given to children by O.C.G.A. § 19-7-1(c)(2). deVente v. Flora, 300 Ga. App. 10, 684 S.E.2d 91 (2009).

Must be an interested person to have standing to offer will to probate.

- Trial court erred by denying two children's motion to dismiss the petition to probate filed by the decedent's brother because the brother lacked standing to offer the will to probate under O.C.G.A. § 53-5-2 because the brother was not an interested person as the brother was not a judgment creditor of an heir of the decedent, a purchaser from an heir, a person claiming under an earlier will, or an administrator appointed for the decedent before discovery of the will. Ray v. Stevens, 295 Ga. 895, 764 S.E.2d 809 (2014).

Damages.

- Trial court erred in finding that a stepfather's heirs had a purchase money resulting trust in a homeplace as the stepfather's heirs failed to rebut the presumption that the homeplace was a gift to a decedent mother from the stepfather; the matter was remanded to the trial court to determine damages to be awarded to the mother's children under O.C.G.A. § 53-2-1(b)(1). In re Estate of Thornton, 275 Ga. App. 202, 620 S.E.2d 410 (2005).

Impact of parent's cruel treatment of decedent's child.

- Despite evidence of a parent's cruel treatment of the parent's decedent child, the trial court erred in finding that the parent forfeited parental rights, and thus lost the status as a parent and, in so doing, lost the right to recover as an heir of the decedent's estate, as the loss of parental power did not necessarily result in a parent's loss of a right to inherit as an heir from the estate of that parent's child, short of having the parent's rights terminated prior to the child's death; hence, summary judgment against the parent on the issue was reversed. Blackstone v. Blackstone, 282 Ga. App. 515, 639 S.E.2d 369 (2006).

Cousins stand in equal degree. Redd v. Clopton, 17 Ga. 230 (1855) (decided under Laws 1845, Cobb's 1851 Digest, p. 297).

Degrees of kinship generally.

- Degree of kinship is counted from the intestate up to the common ancestor, one degree for each generation, thence down the collateral line to the contestant. The number of degrees in the longer of these two lines is the degree of kindred between the intestate and the claimant. Wetter v. Habersham, 60 Ga. 193 (1878) (decided under former Code 1873, §§ 1762, 2484).

As between a living uncle of the intestate and children of such uncle and a child of a predeceased aunt and the children of another predeceased aunt, the distribution shall be per capita among all of the parties in the case. Weinman v. Scarborough, 154 Ga. 431, 114 S.E. 712 (1922) (decided under former Civil Code 1910, § 3931).

Term "uncle" as used in former O.C.G.A. § 53-4-2 was limited to those persons who have a common ancestor with the niece or nephew. Hill v. Newman, 254 Ga. 57, 325 S.E.2d 767 (1985) (decided under former O.C.G.A. § 53-4-2).

By statute changing the English rule, the wife is expressly made an "heir" of her husband. Gibbon v. Gibbon, 40 Ga. 562 (1869) (decided under former Code 1868, §§ 1752, 2448).

Posthumous children inherit as though born at the time of the intestate's death. Morrow v. Scott, 7 Ga. 535 (1849) (decided under Laws 1841, Cobb's 1851 Digest, p. 296).

Paternal and maternal half blood inherits equally with whole blood.

- When a widow dies intestate leaving one child by one marriage and two children and the children of a third child, deceased, by a second marriage, her estate descends in four equal parts, one each to the living children per capita, and one per stirpes to be divided among the children of the deceased child. Odam v. Caruthers, 6 Ga. 39 (1849) (decided under Laws 1841, Cobb's 1851 Digest, p. 296); Reed v. Norman, 157 Ga. 183, 121 S.E. 310 (1924);(decided under former Civil Code 1910, § 3731).

Legitimates and illegitimates inherit equally from the mother. Houston v. Davidson, 45 Ga. 574 (1872) (decided under former Civil Code 1910, § 3731).

An illegitimate half-niece would not take under this statute by representation from a legitimate half-uncle on her maternal side when the latter's property came through the latter's father, not the latter's mother. Rhodes v. Williams, 143 Ga. 342, 85 S.E. 105 (1915) (decided under former Civil Code 1910, § 3731).

Virtual adoption.

- Trial court erred by granting a biological son's motion for partial summary judgment on the issue of virtual adoption asserted by the purported adopted daughter because the court clearly erred by misinterpreting the requirement of partial performance of the agreement to adopt and erroneously concluded that an established virtual adoption can be undone by showing that the purported adopted daughter formed a relationship with the child's natural father after learning of his existence when a teenager. Sanders v. Riley, 296 Ga. 693, 770 S.E.2d 570 (2015).

Cited in Houston v. Davidson, 45 Ga. 574 (1872); Wetter v. Habersham, 60 Ga. 193 (1878); Ector v. Grant, 112 Ga. 557, 37 S.E. 984, 53 L.R.A. 723 (1901); Raburn v. Bradshaw, 124 Ga. 552, 52 S.E. 922 (1905); Rhodes v. Williams, 143 Ga. 342, 85 S.E. 105 (1915); Pylant v. Burns, 153 Ga. 529, 112 S.E. 455, 28 A.L.R. 423 (1922); B.B. ex rel. A.L.B. v. Schweiker, 643 F.2d 1069 (5th Cir. 1981); Burnett v. Schweiker, 643 F.2d 1168 (5th Cir. 1981); Chapman v. McClelland, 248 Ga. 725, 286 S.E.2d 290 (1982); Cain v. Cain, 176 Ga. App. 671, 337 S.E.2d 377 (1985); Wilson v. James, 260 Ga. 234, 392 S.E.2d 5 (1990); McClinton v. Sullivan, 208 Ga. App. 411, 430 S.E.2d 794 (1993); In re Last Will of Lewis, 263 Ga. 349, 434 S.E.2d 472 (1993); McClinton v. Sullivan, 263 Ga. 711, 438 S.E.2d 71 (1994); Bacon v. Smith, 222 Ga. App. 542, 474 S.E.2d 728 (1996); Haley v. Regions Bank, 277 Ga. 85, 586 S.E.2d 633 (2003); Progressive Classic Ins. Co. v. Nationwide Mut. Fire Ins. Co., 294 Ga. App. 787, 670 S.E.2d 497 (2008).

RESEARCH REFERENCES

10 Am. Jur. Pleading and Practice Forms, Executors and Administrators, § 700.

14 Am. Jur. Pleading and Practice Forms, Inheritance, Estate, and Gift Taxes, § 2.

ALR.

- Applicability of doctrine of advancements to testate succession, 32 A.L.R. 730.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator's death, 7 A.L.R.4th 989.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse, 31 A.L.R.4th 1190.

Descent and distribution: rights of inheritance as between kindred of whole and half blood, 47 A.L.R.4th 561.

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