Decedent dies intestate; wife M and two minor children F and G; At death, M pregnant with third child H; After setting aside a share for surviving spouse, how will the descendants' portion be distributed if H is born alive?

• A. F and G each receive one-half
• B. F and G equal share; H, if born alive, receives equal share
• C. F and G equal; H, if born alive before distribution, receives equal share
• D. F and G 40%, and H 20%

Answer: (B)

The test here is about how intestate succession handles a child in utero and how shares are divided among descendants after the surviving spouse’s portion is set aside. When someone dies intestate, the surviving spouse gets a fixed share, and the remaining portion goes to the decedent’s children by representation. A child conceived but not yet born at the time of death is treated as if born, but only if he is actually born alive. If H is born alive, he is treated the same as F and G for purposes of sharing the descendants’ portion.

So, after the surviving spouse’s share is set aside, the descendants’ portion is shared equally among all eligible children. With two living children and a possible third who would be alive, the three shares are equal. Therefore F, G, and H (assuming H is born alive) each receive one third of the descendants’ portion. If H were not born alive, F and G would divide the descendants’ portion between them.