Section 2-109
(a)
If an individual dies intestate as to all or a portion of the estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or (ii) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
(b)
If the value of an advancement is expressed in the conveyance, in the contemporaneous writing, or in the acknowledgment, such value shall be adopted in the division and distribution of the intestate estate; otherwise it shall be determined according to the value when the property was given.
(c)
Property which is advanced by an intestate shall be considered as part of the intestate's estate in the division and distribution of such estate, and shall be taken by the heir who received the advance toward the heir's share of the intestate estate; but the heir shall not be required to restore any part thereof, although it exceeds the intestate share. A surviving spouse shall be entitled only to a share in the residue after deducting the value of the advancement.
(d)
If a child or other lineal descendant of the intestate who has received an advancement dies before the intestate, leaving descendants who receive a share of the intestate's estate, the advancement shall be considered as part of the intestate's estate in the division and distribution of such estate, and the value thereof shall be taken in equal shares by the representatives of the person who received the advancement toward their share of the intestate estate, as if the advancement had been made directly to them.
(e)
The probate court in which the estate of a decedent is settled may hear and determine all questions of advancements arising relative to such estate.
Comment
The statute is phrased in terms of the donee being an heir “at the decedent's death”. The donee need not be a prospective heir at the time of the gift. For example, if the intestate, G, made an inter-vivos gift intended to be an advancement to a grandchild at a time when the intestate's child who is the grandchild's parent is alive, the grandchild would not then be a prospective heir. Nevertheless, if G's intent that the gift be an advancement is contained in a written declaration or acknowledgment as provided in this section, the gift is regarded as an advancement if G's child (who is the grandchild's parent) predeceases G, making the grandchild an heir.
To be an advancement, the gift need not be an outright gift; it can be in the form of a will substitute, such as designating the donee as the beneficiary of the intestate's life-insurance policy or the beneficiary of the remainder interest in a revocable inter-vivos trust.
Most inter-vivos transfers today are intended to be absolute gifts or are carefully integrated into a total estate plan. If the donor intends that any transfer during the donor's lifetime be deducted from the donee's share of the donor's estate, the donor may either execute a will so providing or, if the donor intends to die intestate, charge the gift as an advance by a writing within the present section.
This section applies to advances to the decedent's spouse and collaterals (such as nephews and nieces) as well as to descendants, but with respect to advances made to a person who dies before the intestate, it applies only to advances to the decedent's lineal descendants.
Massachusetts comment
This section is substantially similar to the advancement rules under chapter 196.