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 />online-accounting-course/11Xpg01.html; website home
page: (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