Can My Father's Girlfriend Inherit His Property if He Died Without a Will in Mississippi?
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Answer:
Property of a person who dies in Mississippi without a will or spouse is distributed to family members after filing a petition to probate the estate. If the assets of the estate are valued at less than $50,000, a summary procedure is available. An intestate estate is any part of the estate of a decedent not effectively disposed of by his will, which passes to his heirs as prescribed in the applicable state's laws of intestate succession. The estate of a decedent who dies intestate is distributed according to the intestacy laws where the decedent was domiciled and/or where the decedent owned real property. Under the intestate laws of succession, the spouse and heirs will receive property by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Each state has an intestacy law which specifies who is to inherit property in the absence of a will. If a person dies without a will, the probate court will appoint a personal representative (or administrator) for his or her estate to receive creditors' claims against the estate, pay debts, and distribute the deceased person’s remaining property according to state laws. When a person dies intestate, a petition for adminstering the estate and appointment of an adminstrator (male) or administratrix (female) is filed with the court, requesting letters of administration to be issued so that the adminstrator(-trix) may settle the affairs of the decedent's estate.
When a person dies, their assets are distributed in the probate process. If a person dies without a valid will, an administrator is named to handle the distribution of the estate after a petition to probate the estate is filed with the court in the county where the deceased resided. The court will issue letters testamentary of letters of administration, giving the administrator authority to collect the assets and pay the debts of the decedent.
In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. The amount is $50,000 in Mississippi to collect property by affidavit. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state.
Generally, unmarried cohabitants do not enjoy the same rights as married individuals, particularly with respect to property acquired during a relationship. Marital property laws and other family laws related to marriage do not apply to unmarried couples, even in long-term relationships. The characterization of property acquired by unmarried cohabitants is less clear than that of married couples whose ownership of property is governed by marital and community property laws. Some property acquired by unmarried couples may be owned jointly, but it may be difficult to divide such property when the relationship ends.
Cohabitation is generally defined as two people living together as if a married couple. State laws vary in defining cohabitation. Some states have statutes which make cohabitation a criminal offense under adultery laws. Under one state's law, cohabitation means "regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation." Another state statute defines cohabitation as "the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common-law marriage." Yet another state, Georgia, defines cohabitation as "dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person."
Living together, or cohabitation, in a non-marital relationship does not automatically entitle either party to acquire any rights in the property of the other party acquired during the period of cohabitation. However, adults who voluntarily live together and engage in sexual relations may enter into a contract to establish the respective rights and duties of the parties with respect to their earnings and the property acquired from their earnings during the nonmarital relationship. While parties to a nonmarital cohabitation agreement cannot lawfully contract to pay for the performance of sexual services, they may agree to pool their earnings and hold all property acquired during the relationship separately, jointly or to be governed by community property laws. They may also agree to pool only part of their earnings and property, form a partnership or joint venture or joint enterprise, or hold property as joint tenants or tenants in common, or agree to any other arrangement.
Other legal issues that may be affect cohabiting couples inlude estate planning and medical care. Generally, someone who cohabits with another is not considered an heir under the law or have the same rights to make medical care decisions in the same manner as a spouse. Therefore, unmarried cohabitants may consider estate planning and power of attorneys in addition to having a nonmarital agreement.
In some cases of people who formerly cohabited, courts have found a trust created in property of one person who cohabits with another, whereby the property is deemed held for the benefit of their domestic partner. When there is no formal trust agreement, a resulting trust may still be found under certain circumstances in order to enforce agreements regarding the property and income of domestic partners. If there is evidence that the parties intended to create a trust, but the formalities of a trust are lacking, the court may declare a resulting trust exists. The court may also declare that a constructive trust exists, which is essentially a legal fiction designed to avoid injustice and prevent giving an unfair advantage to one of the parties. This may be based on the contributions made by one partner to the property of the other. Each case is decided on its own facts, taking all circumstances into consideration.
A minority of states have anti-cohabitation laws on their books, although they are largely not enforced. State laws also exist allowing cohabitation as affirmative defense in certain criminal sexual offenses. Cohabitation alone may not qualify as common law marriage. Under the terms of an alimony order, payments may cease if the recipient cohabits with another. Some state statutes and case law allow modification or termination of alimony based upon a significant change of circumstances, such as cohabitation. State laws involving cohabitation vary by state, so local laws should be consulted for requirements and applicablilty in your area.
Jared Laskin, a prominent “palimony” lawyer in California has written an online article about palimony since the 1976 decision of Marvin v. Marvin; see: http://www.palimony.com/7.html. Reading that article will give some notion of the rights of a cohabitant whose domestic partnership is not working.
It is recommended for cohabiting couples to create a cohabitation agreement, which can be enforced under contract law principles. Such agreements provide for the terms of dividing assets and debts upon termination of the relationship. Please see the links to the forms below.
A resulting trust is a trust created in property of one person who cohabits with another, whereby the property is deemed held for the benefit of their domestic partner. When there is no formal trust agreement, a resulting trust may still be found under certain circumstances in order to enforce agreements regarding the property and income of domestic partners. If there is evidence that the parties intended to create a trust, but the formalities of a trust are lacking, the court may find a resulting trust exists.
The court may also declare that a constructive trust exists, which is essentially a legal fiction designed to avoid injustice and prevent giving an unfair advantage to one of the parties. This may be based on the contributions made by one partner to the property of the other. The court typically requires a finding of unjust enrichment before it wil impose a constructive trust. Each case is decided on its own facts, taking all circumstances into consideration.
The doctrine of unjust enrichment is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. The general rule is that a payment of money under a mistake of fact may be recovered provided that such payment will not prejudice the payee. It is considered unjust enrichment to permit a recipient to retain money paid because of a mistake, unless the circumstances are such that it would be inequitable to require its return. This applies even if the mistake is one on one side (unilateral) and a consequence of the payors negligence, or that the payee acted in good faith. "A person who has conferred a benefit on another by mistake is not precluded from maintaining an action for restitution by the fact that the mistake was due to his lack of care." (Restatement of Restitution § 59.) Equity, which is based on notions of fairness, often allows a person who pays money to another under the mistaken belief a valid contract exists to recover that money when the contract is subsequently canceled for fraud or mistake and the rights of innocent parties have not intervened. (Restatement of Restitution §§ 17, 28.)
A constructive trust is one that arises by operation of law against one who, by fraud, wrongdoing, or any other unconscionable conduct, either has obtained or holds legal right to property which he ought not to, in good conscience, keep and enjoy. A constructive trust is an appropriate remedy against unjust enrichment. Unjust enrichment is present in nearly every case where a constructive trust is imposed. However, the court's creation of a constructive trust is not necessarily dependent on a finding that the person whose property is subjected to it has acted wrongly, but may rest as well upon a finding of unjust enrichment arising from other circumstances that "render it inequitable for the party holding the title to retain it." (Starleper v. Hamilton 106 Md.App. 632, 666 A.2d 867 (1995).)
The basis for creating a constructive trust is to prevent unjust enrichment. (Restatement of Restitution § 160, comment c.) "Where a person wrongfully disposes of property of another knowing that the disposition is wrongful and acquires in exchange other property, the other is entitled to enforce a constructive trust of the property so acquired." If the property so acquired is or becomes more valuable than the property used in acquiring it, the profit thus made by the wrongdoer cannot be retained by him; the person whose property was used in making the profit is entitled to it." (Restatement Restitution § 202.) When property is given or devised to a defendant in breach of a donor's or testator's contract with a plaintiff, equity will impose a constructive trust upon that property being held by another even though (1) the transfer is not the result of breach of a fiduciary duty or an actual or constructive fraud practiced upon the plaintiff, and (2) the donee or devisee had no knowledge of the wrongdoing or breach of contract. (Jones v. Harrison , 250 Va. 64, 458 S.E.2d 766 (1995 ).)
A person who has been unjustly enriched at the expense of another may be required to make restitution to the other. Despite not having a contractual agreement, a trial court may require an individual to make restitution for unjust enrichment if he has received a benefit which would be unconscionable to retain. A person may be deemed to be unjustly enriched if he (or she) has received a benefit, and keeping it would create injustice.
Please see the following MS statutes:
§ 91-1-27. How title to property acquired by descent may be made.
In all cases in which persons have died, or may hereafter die, wholly
or partially intestate, having property, real or personal, any heir at
law of such deceased person, or any one interested in any of the property
as to which he shall have died intestate, may petition the chancery court
of the county in which said deceased had his mansion house or principal
place or residence, or in which any part of his real estate may be
situated, in case he was a non-resident, setting forth the fact that said
person died wholly or partially intestate, possessed of real or personal
property in the State of Mississippi, the names of the heirs at law or
next of kin, and praying that the person named in said petition be
recognized and decreed to be the heir at law of said deceased.
§ 91-1-3. Descent of land.
When any person shall die seized of any estate of inheritance in
lands, tenements, and hereditaments not devised, the same shall descend
to his or her children, and their descendants, in equal parts, the
descendants of the deceased child or grandchild to take the share of the
deceased parent in equal parts among them. When there shall not be a
child or children of the intestate nor descendants of such children, then
to the brothers and sisters and father and mother of the intestate and
the descendants of such brothers and sisters in equal parts, the
descendants of a sister or brother of the intestate to have in equal
parts among them their deceased parent's share. If there shall not be a
child or children of the intestate, or descendants of such children, or
brothers or sisters, or descendants of them, or father or mother, then
such estate shall descend, in equal parts, to the grandparents and uncles
and aunts, if any there be; otherwise, such estate shall descend in equal
parts to the next of kin of the intestate in equal degree, computing by
the rules of the civil law. There shall not be any representation among
collaterals, except among the descendants of the brothers and sisters of
the intestate.
§ 91-1-11. Personal estate to descend as real estate.
When any person shall die possessed of goods and chattels or personal
estate not bequeathed, the same shall descend to and be distributed among
his or her heirs in the same manner that real estate not devised
descends.