§ 2206. Descent and distribution

(a) Nontestamentary disposition

(1) Rules of descent

Subject to any applicable Federal law relating to the devise or descent of trust or restricted property, any trust or restricted interest in land or interest in trust personalty that is not disposed of by a valid will—

(A) shall descend according to an applicable tribal probate code approved in accordance with section 2205 of this title; or

(B) in the case of a trust or restricted interest in land or interest in trust personalty to which a tribal probate code does not apply, shall descend in accordance with—

(i) paragraphs (2) through (5); and

(ii) other applicable Federal law.

(2) 1 Rules governing descent of estate

(A) Surviving spouse

If there is a surviving spouse of the decedent, such spouse shall receive trust and restricted land and trust personalty in the estate as follows:

(i) If the decedent is survived by 1 or more eligible heirs described in subparagraph (B)(i), (ii), (iii), or (iv), the surviving spouse shall receive 1/3 of the trust personalty of the decedent and a life estate without regard to waste in the interests in trust or restricted lands of the decedent.

(ii) If there are no eligible heirs described in subparagraph (B)(i), (ii), (iii), or (iv), the surviving spouse shall receive all of the trust personalty of the decedent and a life estate without regard to waste in the trust or restricted lands of the decedent.

(iii) The remainder shall pass as set forth in subparagraph (B).

(iv) Trust personalty passing to a surviving spouse under the provisions of this subparagraph shall be maintained by the Secretary in an account as trust personalty, but only if such spouse is Indian.

(B) Individual and tribal heirs

Where there is no surviving spouse of the decedent, or there is a remainder interest pursuant to subparagraph (A), the trust or restricted estate or such remainder shall, subject to subparagraphs (A) and (D), pass as follows:

(i) To those of the decedent’s children who are eligible heirs (or if 1 or more of such children do not survive the decedent, the children of any such deceased child who are eligible heirs, by right of representation, but only if such children of the deceased child survive the decedent) in equal shares.

(ii) If the property does not pass under clause (i), to those of the decedent’s surviving great-grandchildren who are eligible heirs, in equal shares.

(iii) If the property does not pass under clause (i) or (ii), to the decedent’s surviving parent who is an eligible heir, and if both parents survive the decedent and are both eligible heirs, to both parents in equal shares.

(iv) If the property does not pass under clause (i), (ii), or (iii), to those of the decedent’s surviving siblings who are eligible heirs, in equal shares.

(v) If the property does not pass under clause (i), (ii), (iii), or (iv), to the Indian tribe with jurisdiction over the interests in trust or restricted lands;

except that notwithstanding clause (v), an Indian co-owner (including the Indian tribe referred to in clause (v)) of a parcel of trust or restricted land may acquire an interest that would otherwise descend under that clause by paying into the estate of the decedent, before the close of the probate of the estate, the fair market value of the interest in the land; if more than 1 Indian co-owner offers to pay for such interest, the highest bidder shall acquire the interest.

(i) In general If there is no Indian tribe with jurisdiction over the interests in trust or restricted lands that would otherwise descend under subparagraph (B)(v), then such interests shall be divided equally among co-owners of trust or restricted interests in the parcel; if there are no such co-owners, then to the United States, provided that any such interests in land passing to the United States under this subparagraph shall be sold by the Secretary and the proceeds from such sale deposited into the land acquisition fund established under section 2215 of this title and used for the purposes described in subsection (b) of that section.

(ii) Contiguous parcel If the interests passing to the United States under this subparagraph are in a parcel of land that is contiguous to another parcel of trust or restricted land, the Secretary shall give the owner or owners of the trust or restricted interest in the contiguous parcel the first opportunity to purchase the interest at not less than fair market value determined in accordance with this chapter. If more than 1 such owner in the contiguous parcel request to purchase the parcel, the Secretary shall sell the parcel by public auction or sealed bid (as determined by the Secretary) at not less than fair market value to the owner of a trust or restricted interest in the contiguous parcel submitting the highest bid.

(D) Intestate descent of small fractional interests in land

(i) General rule Notwithstanding subparagraphs (A) and (B), and subject to any applicable Federal law, any trust or restricted interest in land in the decedent’s estate that is not disposed of by a valid will and represents less than 5 percent of the entire undivided ownership of the parcel of land of which such interest is a part, as evidenced by the decedent’s estate inventory at the time of the heirship determination, shall descend in accordance with clauses (ii) through (v).

(ii) Surviving spouse If there is a surviving spouse, and such spouse was residing on a parcel of land described in clause (i) at the time of the decedent’s death, the spouse shall receive a life estate without regard to waste in the decedent’s trust or restricted interest in only such parcel, and the remainder interest in that parcel shall pass in accordance with clause (iii).

(iii) Single heir rule Where there is no life estate created under clause (ii) or there is a remainder interest under that clause, the trust or restricted interest or remainder interest that is subject to this subparagraph shall descend, in trust or restricted status, to—

(I) the decedent’s surviving child, but only if such child is an eligible heir; and if 2 or more surviving children are eligible heirs, then to the oldest of such children;

(II) if the interest does not pass under subclause (I), the decedent’s surviving grandchild, but only if such grandchild is an eligible heir; and if 2 or more surviving grandchildren are eligible heirs, then to the oldest of such grandchildren;

(III) if the interest does not pass under subclause (I) or (II), the decedent’s surviving great grandchild, but only if such great grandchild is an eligible heir; and if 2 or more surviving great grandchildren are eligible heirs, then to the oldest of such great grandchildren;

(IV) if the interest does not pass under subclause (I), (II), or (III), the Indian tribe with jurisdiction over the interest; or

(V) if the interest does not pass under subclause (I), (II), or (III), and there is no such Indian tribe to inherit the property under subclause (IV), the interest shall be divided equally among co-owners of trust or restricted interests in the parcel; and if there are no such co-owners, then to the United States, to be sold, and the proceeds from sale used, in the same manner provided in subparagraph (C).

The determination of which person is the oldest eligible heir for inheritance purposes under this clause shall be made by the Secretary in the decedent’s probate proceeding and shall be consistent with the provisions of this chapter.

(iv) Exceptions Notwithstanding clause (iii)—

(I)

(aa) the heir of an interest under this subparagraph, unless the heir is a minor or incompetent person, may agree in writing entered into the record of the decedent’s probate proceeding to renounce such interest, in trust or restricted status, in favor of—

(AA) any other eligible heir or Indian person related to the heir by blood, but in any case never in favor of more than 1 such heir or person;

(BB) not more than 1 co-owner of another trust or restricted interest in such parcel of land; or

(CC) the Indian tribe with jurisdiction over the interest, if any; and

(bb) the Secretary shall give effect to such agreement in the distribution of the interest in the probate proceeding; and

(II) the governing body of the Indian tribe with jurisdiction over an interest in trust or restricted land that is subject to the provisions of this subparagraph may adopt a rule of intestate descent applicable to such interest that differs from the order of descent set forth in clause (iii). The Secretary shall apply such rule to the interest in distributing the decedent’s estate, but only if—

(aa) a copy of the tribal rule is delivered to the official designated by the Secretary to receive copies of tribal rules for the purposes of this clause;

(bb) the tribal rule provides for the intestate inheritance of such interest by no more than 1 heir, so that the interest does not further fractionate;

(cc) the tribal rule does not apply to any interest disposed of by a valid will;

(dd) the decedent died on or after the date described in subsection (b) of section 8 of the American Indian Probate ^[2] Act of 2004, or on or after the date on which a copy of the tribal rule was delivered to the Secretary pursuant to item (aa), whichever is later; and So in original. Probably should be followed by “Reform”.

(ee) the Secretary does not make a determination within 90 days after a copy of the tribal rule is delivered pursuant to item (aa) that the rule would be unreasonably difficult to administer or does not conform with the requirements in item (bb) or (cc).

(v) Effect of subparagraph Nothing in this subparagraph limits the right of any person to devise any trust or restricted interest pursuant to a valid will in accordance with subsection (b).

(3) Right of representation

If, under this subsection, all or any part of the estate of a decedent is to pass to children of a deceased child by right of representation, that part is to be divided into as many equal shares as there are living children of the decedent and pre-deceased children who left issue who survive the decedent. Each living child of the decedent, if any, shall receive 1 share, and the share of each pre-deceased child shall be divided equally among the pre-deceased child’s children.

(4) Special rule relating to survival

In the case of intestate succession under this subsection, if an individual fails to survive the decedent by at least 120 hours, as established by clear and convincing evidence—

(A) the individual shall be deemed to have predeceased the decedent for the purpose of intestate succession; and

(B) the heirs of the decedent shall be determined in accordance with this section.

(5) Status of inherited interests

Except as provided in paragraphs (2)(A) and (D) regarding the life estate of a surviving spouse, a trust or restricted interest in land or trust personalty that descends under the provisions of this subsection shall vest in the heir in the same trust or restricted status as such interest was held immediately prior to the decedent’s death.

(2) 3 Intestate descent of permanent improvements

(A) Definition of covered permanent improvement

In this paragraph, the term “covered permanent improvement” means a permanent improvement (including an interest in such an improvement) that is—

(i) included in the estate of a decedent; and

(ii) attached to a parcel of trust or restricted land that is also, in whole or in part, included in the estate of that decedent.

(B) Rule of descent

Except as otherwise provided in a tribal probate code approved under section 2205 of this title or a consolidation agreement approved under subsection (j)(9), a covered permanent improvement in the estate of a decedent shall—

(i) descend to each eligible heir to whom the trust or restricted interest in land in the estate descends pursuant to this subsection; or

(ii) pass to the recipient of the trust or restricted interest in land in the estate pursuant to a renunciation under subsection (j)(8).

The provisions of this paragraph apply to a covered permanent improvement—

(i) even though that covered permanent improvement is not held in trust; and

(ii) without altering or otherwise affecting the non-trust status of such a covered permanent improvement.’ ^[4]

(b) Testamentary disposition

(1) General devise of an interest in trust or restricted land

(A) In general

Subject to any applicable Federal law relating to the devise or descent of trust or restricted land, or a tribal probate code approved by the Secretary in accordance with section 2205 of this title, the owner of a trust or restricted interest in land may devise such interest to—

(i) any lineal descendant of the testator;

(ii) any person who owns a preexisting undivided trust or restricted interest in the same parcel of land;

(iii) the Indian tribe with jurisdiction over the interest in land; or

(iv) any Indian;

in trust or restricted status.

(B) Rules of interpretation

Any devise of a trust or restricted interest in land pursuant to subparagraph (A) to an Indian or the Indian tribe with jurisdiction over the interest shall be deemed to be a devise of the interest in trust or restricted status. Any devise of a trust or restricted interest in land to a person who is only eligible to be a devisee under clause (i) or (ii) of subparagraph (A) shall be presumed to be a devise of the interest in trust or restricted status unless language in such devise clearly evidences an intent on the part of the testator that the interest is to pass as a life estate or fee interest in accordance with paragraph (2)(A).

(2) Devise of trust or restricted land as a life estate or in fee

(A) In general

Except as provided under any applicable Federal law, any trust or restricted interest in land that is not devised in accordance with paragraph (1)(A) may be devised only—

(i) as a life estate to any person, with the remainder being devised only in accordance with subparagraph (B) or paragraph (1); or

(ii) except as provided in subparagraph (B), as a fee interest without Federal restrictions against alienation to any person who is not eligible to be a devisee under clause (iv) of paragraph (1)(A).

(B) Indian reorganization act lands

(i) In general Subject to clauses (ii) and (iii), any interest”; ^[5] in trust or restricted land that is subject to section 464 of this title, may be devised only in accordance with—

(I) that section;

(II) subparagraph (A)(i); or

(III) paragraph (1)(A).

(ii) Exception

(I) In general Notwithstanding clause (i), in any case in which a resolution, law, or other duly adopted enactment of the Indian tribe with jurisdiction over the land of which an interest described in clause (i) is a part requests the Secretary to apply subparagraph (A)(ii) to devises of trust or restricted land under the jurisdiction of the Indian tribe, the interest may be devised in fee in accordance with subparagraph (A)(ii).

(II) Effect Subclause (I) shall apply with respect to a devise of a trust or restricted interest in land by any decedent who dies on or after the date on which the applicable Indian tribe adopts the resolution, law, or other enactment described in subclause (I), regardless of the date on which the devise is made.

(III) Notice of request An Indian tribe shall provide to the Secretary a copy of any resolution, law, or other enactment of the Indian tribe that requests the Secretary to apply subparagraph (A)(ii) to devises of trust or restricted land under the jurisdiction of the Indian tribe.

(iii) Effect Except as provided in clause (ii), nothing; and ^[6] in this section or in section 464 of this title, shall be construed to authorize the devise of any interest in trust or restricted land that is subject to section 464 of this title to any person as a fee interest under subparagraph (A)(ii).

(3) General devise of an interest in trust personalty

(A) Trust personality 7 defined

The term “trust personalty” as used in this section includes all funds and securities of any kind which are held in trust in an individual Indian money account or otherwise supervised by the Secretary.

(B) In general

Subject to any applicable Federal law relating to the devise or descent of such trust personalty, or a tribal probate code approved by the Secretary in accordance with section 2205 of this title, the owner of an interest in trust personalty may devise such an interest to any person or entity.

In the case of a devise of an interest in trust personalty to a person or Indian tribe eligible to be a devisee under paragraph (1)(A), the Secretary shall maintain and continue to manage such interests as trust personalty.

(D) Direct disbursement and distribution

In the case of a devise of an interest in trust personalty to a person or Indian tribe not eligible to be a devisee under paragraph (1)(A), the Secretary shall directly disburse and distribute such personalty to the devisee.

(4) Invalid devises and wills

(A) Land

Any trust or restricted interest in land that is not devised in accordance with paragraph (1) or (2) or that is not disposed of by a valid will shall descend in accordance with the applicable law of intestate succession as provided for in subsection (a) of this section.

(B) Personalty

Any trust personalty that is not disposed of by a valid will shall descend in accordance with the applicable law of intestate succession as provided for in subsection (a) of this section.

(1) Presumption of joint tenancy

If a testator devises trust or restricted interests in the same parcel of land to more than 1 person, in the absence of clear and express language in the devise stating that the interest is to pass to the devisees as tenants in common, the devise shall be presumed to create a joint tenancy with the right of survivorship in the interests involved.

(2) Exception

Paragraph (1) shall not apply to any devise of an interest in trust or restricted land where the will in which such devise is made was executed prior to the date that is 1 year after the date on which the Secretary publishes the certification required by section 8(a)(4) of the American Indian Probate Reform Act of 2004.

(d) Descent of off-reservation lands

(1) Indian reservation defined

For purposes of this subsection, the term “Indian reservation” includes lands located within—

(A)

(i) Oklahoma; and

(ii) the boundaries of an Indian tribe’s former reservation (as defined and determined by the Secretary);

(B) the boundaries of any Indian tribe’s current or former reservation; or

(C) any area where the Secretary is required to provide special assistance or consideration of a tribe’s acquisition of land or interests in land.

(2) Descent

Except in the State of California, upon the death of an individual holding an interest in trust or restricted lands that are located outside the boundaries of an Indian reservation and that are not subject to the jurisdiction of any Indian tribe, that interest shall descend either—

(A) by testate or intestate succession in trust to an Indian; or

(B) in fee status to any other devises or heirs.

(e) Approval of agreements

The official authorized to adjudicate the probate of trust or restricted lands shall have the authority to approve agreements between a decedent’s heirs and devisees to consolidate interests in trust or restricted lands. The agreements referred to in the preceding sentence may include trust or restricted lands that are not a part of the decedent’s estate that is the subject of the probate. The Secretary may promulgate regulations for the implementation of this subsection.

(f) Estate planning assistance

(1) In general

(A) The activities conducted under this subsection shall be conducted in accordance with any applicable—

(i) tribal probate code; or

(ii) tribal land consolidation plan.

(B) The Secretary shall provide estate planning assistance in accordance with this subsection, to the extent amounts are appropriated for such purpose.

(2) Requirements

The estate planning assistance provided under paragraph (1) shall be designed to—

(A) inform, advise, and assist Indian landowners with respect to estate planning in order to facilitate the transfer of trust or restricted lands to a devisee or devisees selected by the landowners;

(B) dramatically increase the use of wills and other methods of devise among Indian landowners;

(C) substantially reduce the quantity and complexity of Indian estates that pass intestate through the probate process, while protecting the rights and interests of Indian landowners; and

(D) assist Indian landowners in accessing information pursuant to section 2216 (e) of this title.

(3) Probate code development and legal assistance grants

In carrying out this section, the Secretary may award grants, including noncompetitive grants, to—

(A) Indian tribes, for purposes of tribal probate code development and estate planning services to tribal members;

(B) organizations that provide legal assistance services for Indian tribes, Indian organizations, and individual owners of interests in trust or restricted lands that are qualified as nonprofit organizations under section 501 (c)(3) of title 26 and provide such services pursuant to Federal poverty guidelines, for purposes of providing civil legal assistance to such Indian tribes, individual owners, and Indian organizations for the development of tribal probate codes, for estate planning services or for other purposes consistent with the services they provide to Indians and Indian tribes; and

(C) in specific areas and reservations where qualified nonprofit organizations referred to in subparagraph (B) do not provide such legal assistance to Indian tribes, Indian organizations, or individual owners of trust or restricted land, to other providers of such legal assistance;

that submit an application to the Secretary, in such form and manner as the Secretary may prescribe.

(4) Authorization for appropriations

There is authorized to be appropriated such sums as may be necessary to carry out the provisions of paragraph (3).

(g) Applicable Federal law

(1) In general

Any references in subsections (a) and (b) of this section to applicable Federal law include—

(A) Public Law 91–627 (84 Stat. 1874);

(B) Public Law 92–377 (86 Stat. 530);

(D) Public Law 96–274 (94 Stat. 537); and

(E) Public Law 98–513 (98 Stat. 2411).

(2) No effect on laws

Nothing in this chapter amends or otherwise affects the application of any law specified in paragraph (1), or any other Federal law that pertains specifically to—

(A) trust or restricted land located on 1 or more specific Indian reservations that are expressly identified in such law; or

(B) the allotted land (or any interest relating to such land) of 1 or more specific Indian tribes expressly identified in such law, including any of the Federal laws governing the probate or determination of heirs associated with, or otherwise relating to, the land, interest in land, or other interests or assets that are owned by individuals in—

(i) Five Civilized Tribes restricted fee status; or

(ii) Osage Tribe restricted fee status.

(3) Limitation on effect of paragraph

Except to the extent that this chapter would amend or otherwise affect the application of a Federal law specified or described in paragraph (1) or (2), nothing in paragraph (2) limits the application of this chapter to trust or restricted land, interests in such land, or any other trust or restricted interests or assets.

(h) Rules of interpretation

In the absence of a contrary intent, and except as otherwise provided under this chapter, applicable Federal law, or a tribal probate code approved by the Secretary pursuant to section 2205 of this title, wills shall be construed as to trust and restricted land and trust personalty in accordance with the following rules:

(1) Construction that will passes all property

(A) In general

A will shall be construed to apply to all trust and restricted land and trust personalty which the testator owned at his death, including any such land or personalty acquired after the execution of his will.

(B) Permanent improvements

Except as otherwise expressly provided in the will, a devise of a trust or restricted interest in a parcel of land shall be presumed to include the interest of the testator in any permanent improvements attached to the parcel of land.

The provisions of this paragraph apply to a covered permanent improvement—

(i) even though that covered permanent improvement is not held in trust; and

(ii) without altering or otherwise affecting the non-trust status of such a covered permanent improvement.

(2) Class gifts

(A) No differentiation between relationship by blood and relationship by affinity

Terms of relationship that do not differentiate relationships by blood from those by affinity, such as “uncles”, “aunts”, “nieces”, or “nephews”, are construed to exclude relatives by affinity. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as “brothers”, “sisters”, “nieces”, or “nephews”, are construed to include both types of relationships.

(B) Meaning of “heirs” and “next of kin”, etc.; time of ascertaining class

A devise of trust or restricted interest in land or an interest in trust personalty to the testator’s or another designated person’s “heirs”, “next of kin”, “relatives”, or “family” shall mean those persons, including the spouse, who would be entitled to take under the provisions of this chapter for nontestamentary disposition. The class is to be ascertained as of the date of the testator’s death.

In construing a devise to a class other than a class described in subparagraph (B), the class shall be ascertained as of the time the devise is to take effect in enjoyment. The surviving issue of any member of the class who is then dead shall take by right of representation the share which their deceased ancestor would have taken.

(3) Meaning of “die without issue” and similar phrases

In any devise under this chapter,^[8] the words “die without issue”, “die without leaving issue”, “have no issue”, or words of a similar import shall be construed to mean that an individual had no lineal descendants in his lifetime or at his death, and not that there will be no lineal descendants at some future time.

(4) Persons born out of wedlock

In construing provisions of this chapter ^[8] relating to lapsed and void devises, and in construing a devise to a person or persons described by relationship to the testator or to another, a person born out of wedlock shall be considered the child of the natural mother and also of the natural father.

(5) Lapsed devises

Subject to the provisions of subsection (b) of this section, where the testator devises or bequeaths a trust or restricted interest in land or trust personalty to the testator’s grandparents or to the lineal descendent of a grandparent, and the devisee or legatee dies before the testator leaving lineal descendents, such descendents shall take the interest so devised or bequeathed per stirpes.

(6) Void devises

Except as provided in paragraph (5), and if the disposition shall not be otherwise expressly provided for by a tribal probate code approved under section 2205 of this title, if a devise other than a residuary devise of a trust or restricted interest in land or trust personalty fails for any reason, such interest shall become part of the residue and pass, subject to the provisions of subsection (b) of this section, to the other residuary devisees, if any, in proportion to their respective shares or interests in the residue.

(7) Family cemetery plot

If a family cemetery plot owned by the testator in trust or restricted status at his decease is not mentioned in the decedent’s will, the ownership of the plot shall descend to his heirs as if he had died intestate.

(i) Heirship by killing

(1) Heir by killing defined

As used in this subsection, “heir by killing” means any person who knowingly participates, either as a principal or as an accessory before the fact, in the willful and unlawful killing of the decedent.

(2) No acquisition of property by killing

Subject to any applicable Federal law relating to the devise or descent of trust or restricted land, no heir by killing shall in any way acquire any trust or restricted interests in land or interests in trust personalty as the result of the death of the decedent, but such property shall pass in accordance with this subsection.

(3) Descent, distribution, and right of survivorship

The heir by killing shall be deemed to have predeceased the decedent as to decedent’s trust or restricted interests in land or trust personalty which would have passed from the decedent or his estate to such heir—

(A) under intestate succession under this section;

(B) under a tribal probate code, unless otherwise provided for;

(D) by devise;

(E) as a reversion or a vested remainder;

(F) as a survivorship interest; and

(G) as a contingent remainder or executory or other future interest.

(4) Joint tenants, joint owners, and joint obligees

(A) Any trust or restricted land or trust personalty held by only the heir by killing and the decedent as joint tenants, joint owners, or joint obligees shall pass upon the death of the decedent to his or her estate, as if the heir by killing had predeceased the decedent.

(B) As to trust or restricted land or trust personalty held jointly by 3 or more persons, including both the heir by killing and the decedent, any income which would have accrued to the heir by killing as a result of the death of the decedent shall pass to the estate of the decedent as if the heir by killing had predeceased the decedent and any surviving joint tenants.

(C) Notwithstanding any other provision of this subsection, the decedent’s trust or restricted interest in land or trust personalty that is held in a joint tenancy with the right of survivorship shall be severed from the joint tenancy as though the property held in the joint tenancy were to be severed and distributed equally among the joint tenants and the decedent’s interest shall pass to his estate; the remainder of the interests shall remain in joint tenancy with right of survivorship among the surviving joint tenants.

(5) Life estate for the life of another

If the estate is held by a third person whose possession expires upon the death of the decedent, it shall remain in such person’s hands for the period of time following the decedent’s death equal to the life expectancy of the decedent but for the killing.

(6) Preadjudication rule

(A) In general

If a person has been charged, whether by indictment, information, or otherwise by the United States, a tribe, or any State, with voluntary manslaughter or homicide in connection with a decedent’s death, then any and all trust or restricted land or trust personalty that would otherwise pass to that person from the decedent’s estate shall not pass or be distributed by the Secretary until the charges have been resolved in accordance with the provisions of this paragraph.

(B) Dismissal or withdrawal

Upon dismissal or withdrawal of the charge, or upon a verdict of not guilty, such land and personalty shall pass as if no charge had been filed or made.

Upon conviction of such person, and the exhaustion of all appeals, if any, the trust and restricted land and trust personalty in the estate shall pass in accordance with this subsection.

(7) Broad construction; policy of subsection

This subsection shall not be considered penal in nature, but shall be construed broadly in order to effect the policy that no person shall be allowed to profit by his own wrong, wherever committed.

(j) General rules governing probate

(1) Scope

Except as provided under applicable Federal law or a tribal probate code approved under section 2205 of this title, the provisions of this subsection shall govern the probate of estates containing trust and restricted interests in land or trust personalty.

(2) Pretermitted spouses and children

(A) Spouses

(i) In general Except as provided in clause (ii), if the surviving spouse of a testator married the testator after the testator executed the will of the testator, the surviving spouse shall receive the intestate share in the decedent’s trust or restricted land and trust personalty that the spouse would have received if the testator had died intestate.

(ii) Exception Clause (i) shall not apply to a trust or restricted interest in land where—

(I) the will of a testator is executed before the date that is 1 year after the date on which the Secretary publishes a notice of certification under section 8(a)(4) of the American Indian Probate Reform Act of 2004 (25 U.S.C. 2201 note ; Public Law 108–374);

(II)

(aa) the spouse of a testator is a non-Indian; and

(bb) the testator devised the interests in trust or restricted land of the testator to 1 or more Indians;

(III) it appears, based on an examination of the will or other evidence, that the will was made in contemplation of the marriage of the testator to the surviving spouse;

(IV) the will expresses the intention that the will is to be effective notwithstanding any subsequent marriage; or

(V)

(aa) the testator provided for the spouse by a transfer of funds or property outside the will; and

(bb) an intent that the transfer be in lieu of a testamentary provision is demonstrated by statements of the testator or through a reasonable inference based on the amount of the transfer or other evidence.

(iii) Spouses married at the time of the will Should the surviving spouse of the testator be omitted from the will of the testator, the surviving spouse shall be treated, for purposes of trust or restricted land or trust personalty in the testator’s estate, in accordance with subsection (a)(2)(A) of this section, as though there was no will but only if—

(I) the testator and surviving spouse were continuously married without legal separation for the 5-year period preceding the decedent’s death;

(II) the testator and surviving spouse have a surviving child who is the child of the testator;

(III) the surviving spouse has made substantial payments toward the purchase of, or improvements to, the trust or restricted land in such estate; or

(IV) the surviving spouse is under a binding obligation to continue making loan payments for the trust or restricted land for a substantial period of time;

except that, if there is evidence that the testator adequately provided for the surviving spouse and any minor children by a transfer of funds or property outside of the will, this clause shall not apply.

(B) Children

(i) In general If a testator executed the will of the testator before the birth or adoption of 1 or more children of the testator, and the omission of the children from the will is a product of inadvertence rather than an intentional omission, the children shall share in the trust or restricted interests in land and trust personalty as if the decedent had died intestate.

(ii) Adopted heirs Any person recognized as an heir by virtue of adoption under the Act of July 8, 1940 (25 U.S.C. 372a), shall be treated as the child of a decedent under this subsection.

(iii) Adopted-out children

(I) In general For purposes of this chapter, an adopted person shall not be considered the child or issue of his natural parents, except in distributing the estate of a natural kin, other than the natural parent, who has maintained a family relationship with the adopted person. If a natural parent shall have married the adopting parent, the adopted person for purposes of inheritance by, from and through him shall also be considered the issue of such natural parent.

(II) Eligible heir pursuant to other Federal law or tribal law Notwithstanding the provisions of subparagraph (B)(iii)(I), other Federal laws and laws of the Indian tribe with jurisdiction over the trust or restricted interest in land may otherwise define the inheritance rights of adopted-out children.

(3) Divorce

(A) Surviving spouse

(i) In general An individual who is divorced from a decedent, or whose marriage to the decedent has been annulled, shall not be considered to be a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death of the decedent.

Tips

U.S. Code

§ 2206. Descent and distribution