If your spouse or parent dies without a Will, State law determines who will inherit his or her property. These laws, called intestacy laws, are essentially state-written Willls that determine who gets the decedent's property. The word "intestate" describes a person who dies without a will. A person who dies with a Will is said to die "testate."
Generally, in intestate succession, property goes to close family members, starting with a surviving spouse and children, and then gradually widening out to parents, siblings, nieces and nephews, grandparents and their legal descendants, and more distant relatives after that. If absolutely no relatives can be found, then a decedent's property goes to the state.
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And, just to make it all more complicated, the laws of more than one state may apply. The rules for distributing a person's personal property (cars, clothes, jewelry, etc.) will be the state where that person lived, called "domicile" in legal speak. But, if a person also owned real property in another state, that state's law would apply to the distribution of that real property.
Because these laws are written to cover a vast variety of families and situations, they can be complicated to read, and they vary state to state. Basically, in each state, you have to understand the kind of property a person has and the family relationships that person has to work your way down to who gets what.
In some states, for example, a surviving spouse will inherit all the property left by a decedent, if all of that person's surviving heirs are also descendants of the surviving spouse. For example, in a state like that, if John dies intestate, leaving behind a wife, Kate, a baby daughter, Sally, a brother and both parents, Kate, the surviving spouse, would inherit everything.
In some states, though, a surviving spouse would only inherit a portion of John's estate. In New York, for example, Kate, as the surviving spouse, would inherit $50,000 and one-half of the estate, while Sally, the daughter, would inherit the rest. In some states, Kate might inherit one-half of the estate and the other half would go to John's surviving parents. And in some states, if John had been married before he married Kate, and had children from that first marriage, Kate would inherit a portion of his estate (one-half or maybe one-third) and the rest would be divided between his children from both marriages.
States also differ in how they divide up property among the surviving heirs. If a person who would be entitled to inherit has died before the decedent, that person's descendants will inherit that share. There are two different ways to determine how much such descendants are entitled to.
- Per capita distribution means "per head" in Latin and each descendant takes an equal share. If, for example, one sibling and two nieces of a deceased sibling are the right heirs, each would get one-third of the estate.
- Per stirpes distribution means "by the root" in Latin and each descendant takes a share determined by the root--or what that person's deceased ancestor would have inherited. For example, if a child would have inherited one-half of a decedent's assets, but died first and left three children, those three children would each inherit one-sixth of the estate (each would inherit one-third of their parent's one-half share).
What Property is Excluded or Included
Before going into detail about how to understand State's intestacy laws, it's important to realize that these laws only apply to some of what a person might have owned at death. Intestacy law only applies to property that would have passed by a Will (if that person had written one)--but this does not include assets that pass to people at death by beneficiary designation or joint tenancy, which can be most of what a person owned.
Here's a list of common assets that pass to people at death outside of intestacy laws:
- Retirement accounts
- Life insurance
- Payable on death accounts
- Transfer on death accounts
- Real property held in joint tenancy
- Real property held as community property with right of survivorship
- Bank accounts held in joint tenancy
- Property held in living trusts
All such assets pass automatically to the people named as beneficiaries or to the surviving joint owners or to the beneficiaries of a living trust. (If no beneficiary is named, or if the named beneficiary has already died, then these assets pass to the the decedent's estate--which means that they will be subject to intestacy laws.)
Intestacy law applies to everything else owned by a person at death--such as bank accounts held in the name of the dead person, real property held individually or as a tenant in common, stocks and bonds held in investment accounts in that person's name, and all of a person's tangible personal property (furniture, clothing, cars, and the like).
How Intestate Property is Inherited
State's intestacy law dictate who is going to inherit such assets and State's probate laws determine how those assets are going to be transferred. Generally, if someone dies with a Will a court has to supervise the distribution of an estate. That's what probate is, a process in which a judge verifies that a Will is valid (or if there is no Will, identifies the proper heirs) and, once the right people have been notified, the assets have been properly valued, and taxes and creditors have been paid, issues a court order allowing for the distribution of the estate. Dying without a Will doesn't get you out of that process, it just means that instead of interpreting the decedent's Will, the court is going to follow State's intestacy laws to distribute the estate. To find out how probate works in State click here.
In every state, though, estates that fall below a certain dollar limit don't have to go through probate at all. If an estate is small enough, you don't need a court order before being able to distribute that property to the proper people. So, if your spouse or parent dies without a Will, your first question is going to be whether or not you are going to need to open up a probate proceeding and get a court order before you can distribute the property.
If a person's assets fall below State's small estates limit, you won't need to open a probate proceeding in State to distribute the property, but if the dececent's assets are more than this limit, you will need to open a probate proceeding to distribute the assets to those who stand to inhert. Click here to read about the small estates limit in State.
Understanding Intestacy Laws
State intestacy laws are written like computer programs, not like novels, although they do have a certain soap-opera like quality to them. (It can be mind-boggling to imaging a person with all those complicated family relationships at the same time!) Basically, you can think of state intestacy laws like a long series of "IF/THEN" statements -- IF the decedent was married, and had no children, THEN the spouse inherits all." Once you find the right set of "IF's", you can determine who gets the property at issue. The people with the right to inherit are called "heirs."
Here's a list of definitions to help you sort through the relevant terms and understand your relationship to the decedent, and your claim on his or her assets:
Spouse. A spouse is a person who was legally married to the decedent, or, in some states, a Registered Domestic partner. A few states recognize common-law marriage, which means that a person who lived with the decedent as if married, and held themselves out to the world as that person's spouse would have the same legal rights as a spouse in terms of inheritance. Click here to find out if State recognizes common-law marriage.
Child. A child is usually defined as a direct descendant of the dececent. That means child, grandchild, greatgrandchild and so on. Legally adopted children are treated just like lineal descendants, so they count, too. And that means that once a child is legally adopted by another, that child's legal ties to the birthparent are legally severed, which means that they don't count for inheritance purposes. Children who were born after a parent dies count as children for inheritance purposes.
Stepchildren who were never legally adopted don't usually count as children for intestate purposes. Stepchildren who were adopted by a stepparent can still inherit from their biological parent, but this is dependent on state law. In some states, an unadopted stepchild may qualify as an heir if certain conditions are satisfied, such as that the relationship with the parent started while the stepchild was a minor and continued throughout the parent's lifetime and the parent would have adopted that child but there was some legal barrier to doing so (like the parent's natural parent refusing to consent to such adoption).
Outside of Marriage. A child born outside of a marriage has the same claim as a child born inside of a marriage, but the legal issue that' can be difficult is determining who that child's legal parent is. It's easy enough on the mother's side: a child can inherit from his or her birth mother. But on the father's side, if parents were never married, a child will need to prove paternity to have a legal claim. How does a child do this? Here are some common ways:
- A court order declaring paternity
- A written statement from the father acknowledging paternity
- Evidence that a father held a child out as his child publically
Siblings. Brothers, sisters, and half-brothers and half-sisters all count in this group in most states. For example, if Sam married Sarah and had a daughter, Karen, then married Gloria and had twin sons, Ike and Mike and then died intestate, Karen, Ike and Mike (who have a common father) would all be considered his heirs.
Community v. Separate Property. In nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (and Alaska, which is an opt-in community property state that gives both parties the option to make their property community property) people can own different kinds of property: community and separate. In some of those states, the kind of property determines who can inherit. For example, in California, a surviving spouse inherits all of the community property, but inherits either one-half or one third of the decedent's separate property, sharing that with surviving children, or parents, or siblings, depending on who survives the decedent.