Key Takeaways
- Intestacy laws vary significantly by state but generally follow patterns that prioritize spouses and children first, then parents, siblings, and more distant relatives in decreasing order
- Surviving spouses receive different inheritance shares depending on whether children exist, what state laws apply, and whether the state uses community property or common law property systems
- Children inherit equally under most intestacy statutes regardless of age, financial need, or relationship quality with the deceased, with biological children, adopted children, and sometimes stepchildren treated differently
- People in unmarried relationships, close friends, charities, and non-relatives receive nothing under intestacy laws regardless of relationship importance or the deceased person's likely wishes
- Intestate succession requires probate court proceedings with administrators appointed to handle estates according to the same legal processes as estates with wills but following intestacy distribution rules
Understanding Intestate Succession
Intestate succession is the legal process by which state law determines who inherits property when someone dies without a valid will, creating a default distribution scheme that may or may not align with the deceased person's actual wishes.
The term "intestate" means dying without a will or other estate planning documents that direct how property should be distributed after death. When someone dies intestate, they haven't legally communicated their wishes about who should receive their assets, making it necessary for law to supply default rules.
Every state has intestacy statutes establishing exactly who inherits in what proportions when residents die without wills. These laws attempt to approximate what most people would want, generally favoring close family members over distant relatives and following common patterns of inheritance preferences. However, intestacy laws are one-size-fits-all rules that cannot account for individual circumstances, relationships, or preferences.
Intestacy applies only to probate assets owned solely by the deceased person in their individual name. Property with designated beneficiaries like life insurance policies and retirement accounts, jointly owned property with right of survivorship, assets held in trust, and property with transfer-on-death or payable-on-death designations all pass outside intestacy according to their specific ownership or beneficiary designations regardless of intestacy law.
The rigidity of intestacy statutes means courts have no discretion to modify distributions based on fairness, need, or perceived intent. Judges must follow the statutory formulas exactly even when results seem inappropriate or contrary to what the deceased person likely wanted. Family members cannot negotiate different distributions unless all heirs unanimously agree to deviate from intestacy requirements.
How Intestacy Laws Vary by State
While all states have intestacy statutes, the specific rules about who inherits and in what proportions differ substantially across jurisdictions, making it critical to understand your specific state's laws.
Community property states including Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin treat marital property fundamentally differently than common law states. In community property states, assets acquired during marriage are considered equally owned by both spouses regardless of whose name appears on titles. When one spouse dies intestate, half the community property already belongs to the surviving spouse with only the deceased's half passing through intestacy.
Common law states comprising the remaining 41 states determine property ownership based on whose name appears on titles and how property was acquired. Surviving spouses in common law states inherit portions of the deceased spouse's property according to intestacy statutes rather than having automatic ownership of half.
Spouse and children inheritance patterns are the most important intestacy rules since most people fall into this category. Common variations include surviving spouses receiving everything when no children exist, spouses receiving everything when all children are also children of the surviving spouse, spouses receiving a portion (often one-third to one-half) with children receiving the remainder when children from other relationships exist, and children receiving everything when no spouse survives.
Children-only situations when no spouse survives typically result in all children inheriting equally. If any children predeceased the parent, those deceased children's shares usually pass to their own children (the deceased person's grandchildren) through a process called representation or per stripe distribution.
Parent and sibling priority comes into effect when someone dies without a spouse or children. Most states give everything to surviving parents if both are alive, or split assets between parents and siblings in various proportions if only one parent survives. When no parents survive, siblings typically inherit everything equally.
Extended family hierarchies continue through grandparents, aunts, uncles, nieces, nephews, cousins, and increasingly distant relatives until someone with a family connection is found. Most states prefer any blood relative, no matter how distant, over allowing property to escheat to the state.
Escheat to the state occurs only when absolutely no surviving relatives can be identified after exhaustive searches. This rarely happens since genealogical research can usually find distant relatives, but when it does, the deceased person's property becomes state property to be used for public purposes.
What Surviving Spouses Inherit
Spousal inheritance under intestacy varies dramatically based on whether children exist, what type of children they are, and whether community or common law property rules apply.
In community property states, surviving spouses already own half of all community property acquired during marriage, with only the deceased spouse's half subject to intestacy distribution. The surviving spouse often inherits the deceased's half of community property when children are also children of the surviving spouse, receiving everything. When children from other relationships exist, those children might inherit the deceased's half of community property while the surviving spouse keeps their own half.
In common law states, surviving spouses typically receive the entire estate when no children or parents survive. This represents the simplest intestacy scenario where the surviving spouse is the only heir under state law.
When children exist who are all biological or adopted children of both spouses, many states give the entire estate to the surviving spouse, reasoning that the spouse will eventually pass assets to shared children anyway. This approach simplifies administration and recognizes the economic partnership of marriage.
When children exist from prior relationships, the deceased's children who are not the surviving spouse's children, most states divide the estate between the surviving spouse and those children. Common formulas give one-third to one-half to the surviving spouse with the remainder divided among children, or give a specific dollar amount plus a fraction of the remainder to the surviving spouse.
Separate property versus community property in community property states creates additional complexity. Separate property owned before marriage or acquired by gift or inheritance during marriage follows different rules than community property, with surviving spouses often receiving smaller shares of separate property than community property.
Elective share rights in many states allow surviving spouses to claim a statutory minimum percentage of the estate (often one-third to one-half) if intestacy distributions would give them less. This protects spouses from being disinherited through intestacy formulas that favor children or other relatives.
What Children Inherit
Children's inheritance rights under intestacy depend on their relationship to the deceased parent, whether spouses survive, and specific state law provisions about different types of children.
Equal shares among children is the universal rule under intestacy—each child receives exactly the same amount regardless of age, financial need, relationship quality, or any other factor. A 40-year-old successful professional inherits the same share as an 18-year-old college student or a 30-year-old struggling financially.
Biological children of the deceased inherit under intestacy laws in all states without question. Birth certificates establishing parental relationships provide sufficient proof of inheritance rights for biological children.
Adopted children are treated identically to biological children under modern intestacy laws in all states. Legal adoption creates the same parent-child relationship as biology for inheritance purposes. Adopted children inherit from adoptive parents through intestacy just as biological children inherit from biological parents.
Stepchildren generally do not inherit from stepparents under intestacy unless the stepparent legally adopted them. The mere marriage relationship between a parent and stepparent doesn't create legal parent-child relationships between stepparents and stepchildren. Stepchildren who were never adopted inherit nothing from intestate stepparents regardless of how close the relationship was or how long they were part of the family.
Children born outside marriage inherit from mothers in all states automatically. Inheritance from fathers when parents weren't married requires establishing paternity through birth certificates listing the father, acknowledgment of paternity forms signed by the father, DNA testing proving paternity, or court orders establishing paternity.
Posthumous children conceived before death but born after death inherit as if they were alive at the time of death. State laws typically allow reasonable periods (often 280 days) after death for births to qualify for inheritance rights.
Representation or per stripe distribution applies when children predecease their parents leaving their own children (the deceased's grandchildren). The predeceased child's share passes to their children in most states. If a deceased person had three children but one child predeceased them leaving two grandchildren, the estate is divided into three shares, one for each living child and one-third for the two grandchildren to share equally.
Who Gets Nothing Under Intestacy Laws
Intestate succession laws exclude many people who might have been important to the deceased person but don't fall within the legal definition of heirs under state statutes.
Unmarried partners including domestic partners, long-term companions, and significant others receive absolutely nothing under intestacy laws regardless of relationship length or depth. Someone in a committed relationship for decades with a partner they never married will see their partner inherit nothing when they die intestate, with all property passing to blood relatives the partner may never have met.
Stepchildren who were never formally adopted inherit nothing from stepparents under intestacy even when raised from childhood by stepparents who considered them their own children. The lack of legal adoption means stepchildren are not legal heirs under intestacy statutes.
Friends, no matter how close, cannot inherit through intestacy. Best friends, caretakers, or people who provided significant help during the deceased's life receive nothing unless specifically named in beneficiary designations or other estate planning documents that override intestacy.
Charities and nonprofit organizations the deceased person supported financially for years receive nothing through intestacy. Charitable giving requires specific estate planning documents directing donations since intestacy only benefits blood or adopted family members.
Former spouses lose all inheritance rights under intestacy after divorce is finalized. Legal separation without divorce may preserve spousal inheritance rights in some states, but finalized divorces sever the legal relationship that creates intestacy inheritance rights.
In-laws and step-relatives through marriage relationships similarly have no intestacy inheritance rights. Parents-in-law, siblings-in-law, and other relatives through marriage aren't considered legal heirs under intestacy statutes unless they also qualify through blood relationships.
The Probate Process for Intestate Estates
Estates without wills still require probate court proceedings but follow intestacy distribution rules rather than will instructions, with administrators appointed instead of executors.
Filing for probate begins when an interested party, typically a close family member, files a petition with the probate court in the county where the deceased person lived. The petition explains that no will exists and requests appointment as administrator to handle the intestate estate.
Administrator appointment follows state priority rules typically favoring surviving spouses first, then adult children, parents, siblings, and increasingly distant relatives. The person with highest priority who is willing and qualified to serve receives Letters of Administration granting authority to manage the estate.
Notice to heirs and interested parties is required under probate rules, informing all potential intestate heirs that proceedings have begun and giving them opportunities to participate or object. This notice protects heirs' rights and ensures no one is excluded from inheritances they're entitled to receive.
Asset inventory and appraisal follows administrator appointment as administrators must identify all probate assets, determine their values as of the date of death, and file inventories with the court showing the estate's contents and worth.
Creditor claims and debt payment occurs during probate as administrators notify creditors, review submitted claims for validity, and pay legitimate debts from estate assets before making distributions to heirs. State law establishes priority orders for debt payment when assets are insufficient to pay all claims.
Tax obligations including final income tax returns for the deceased, estate income tax returns if the estate earns income during administration, and estate tax returns for large estates exceeding federal or state exemption amounts must be filed and paid before distributions.
Distribution to intestate heirs according to state law formulas concludes the probate process once all debts and taxes are paid. Administrators cannot deviate from intestacy statutes when distributing assets—they must follow the law exactly regardless of perceived fairness or family preferences.
Common Problems with Intestate Estates
Dying without a will creates numerous complications beyond simply following state distribution formulas, often resulting in unintended consequences and family difficulties.
Family conflicts arise frequently in intestate estates when statutory distributions don't match family expectations or preferences. Siblings who helped care for aging parents while others remained distant may feel entitled to larger shares than equal division provides. Family members who received financial help during the deceased's life might be expected to accept reduced inheritances, but intestacy mandates equal treatment.
Minor children inheriting directly creates problems since minors cannot legally own property or manage financial accounts. When children inherit through intestacy, courts often require establishing conservatorships or guardianships to manage their inheritances until age 18 or 21, creating ongoing court supervision and administrative costs that reduce estate value.
Blended family complications multiply in intestate situations. Second marriages with children from prior relationships, stepchildren never formally adopted, and complex family structures rarely fit neatly into intestacy formulas designed for traditional nuclear families. The results often surprise families and create hurt feelings or conflicts.
Special needs beneficiaries who inherit through intestacy may lose government benefits like SSI or Medicaid because inherited assets exceed eligibility thresholds. Proper estate planning uses special needs trusts to provide for disabled beneficiaries without disqualifying them from benefits, but intestacy provides no such protection.
Business succession problems arise when intestacy divides business ownership among multiple heirs who may disagree about business operations or want to sell while others want to continue operating. Businesses often require single decision-makers or at least agreement among co-owners, making fractional ownership through intestacy difficult.
Real estate complications occur when property passes to multiple heirs as tenants in common, requiring unanimous decisions about selling, renting, or maintaining property. Siblings who inherit jointly often disagree about property management, creating deadlock and potential partition lawsuits.
Delayed administration happens more frequently with intestate estates because no one feels specifically obligated to handle affairs when no executor was named. Months or years may pass before family members initiate probate, during which property deteriorates, assets lose value, or creditors pursue collection.
How to Avoid Intestacy Problems
Creating basic estate planning documents prevents intestacy and allows personal control over asset distribution, beneficiary designation, and estate administration procedures.
Writing a simple will is the most basic step to avoid intestacy. Wills need not be complex documents, basic wills stating who should receive your property and who should serve as executor avoid intestacy entirely. Many people can create simple wills using online tools, though attorney review is advisable for valuable estates or complex situations.
Beneficiary designations on retirement accounts, life insurance policies, transfer-on-death accounts, and payable-on-death accounts allow those assets to bypass probate entirely and pass according to your designations rather than intestacy law. Review beneficiary designations regularly to ensure they remain current.
Trusts provide more sophisticated estate planning allowing detailed instructions about how and when beneficiaries receive assets, protection for minor children or special needs beneficiaries, avoidance of probate entirely for trust-held assets, and privacy since trusts don't require public court proceedings.
Joint ownership with the right of survivorship for property you want specific people to receive automatically at death works for bank accounts, real estate, and other assets. However, joint ownership creates complications during life including exposure to co-owners' creditors and inability to change ownership without consent.
Regular updates to estate planning documents ensure they reflect current circumstances, relationships, and wishes. Review documents after major life events like marriages, divorces, births, deaths, or significant financial changes.
Professional estate planning assistance from attorneys experienced in trusts and estates ensures documents are properly executed, comply with state law, accomplish your goals, and minimize taxes and administrative costs. The cost of basic estate planning is trivial compared to intestacy's problems.
Conclusion
When someone dies without a valid will, state intestacy laws automatically distribute their property through rigid formulas that prioritize surviving spouses and blood relatives in predetermined patterns that may not reflect the deceased person's actual wishes or family circumstances. Understanding that intestacy laws vary significantly by state but generally favor close family over distant relatives, surviving spouses receive different shares depending on whether children exist and what state laws apply, children inherit equally regardless of age or need while stepchildren receive nothing without formal adoption, unmarried partners and friends receive nothing under intestacy regardless of relationship importance, and intestate estates still require probate court proceedings following the same legal processes as estates with wills, you can appreciate why estate planning documents that override intestacy default rules are important.
Intestacy creates a one-size-fits-all approach to estate distribution that works adequately for some simple family situations but causes serious problems for blended families, unmarried couples, people with special needs beneficiaries, business owners, and anyone whose wishes differ from the statutory formula. The solution is straightforward, create a will or other estate planning documents expressing your actual wishes rather than leaving distribution to impersonal state statutes.
If navigating intestate succession laws in your state, determining who inherits what when someone dies without a will, handling the probate process for intestate estates, resolving family conflicts about intestacy distributions, or creating estate planning documents to avoid intestacy for yourself feels overwhelming, Elayne can help research applicable state intestacy statutes and distribution formulas, coordinate with probate attorneys about estate administration, facilitate family discussions about inheritance expectations, and connect you with estate planning professionals to create wills and other documents.
FAQs
Q: Does a surviving spouse always inherit everything when someone dies without a will?
Not necessarily, spousal inheritance depends on state law, whether children or parents survive, and whether children are from the current marriage or prior relationships.
Q: Can family members agree to divide an estate differently than intestacy laws require?
Yes if all legal heirs unanimously consent, but courts typically require formal agreements and all heirs must participate voluntarily without coercion.
Q: What happens to minor children's inheritance when parents die intestate?
Courts typically require guardians or conservators to manage inherited property until children reach legal age, creating ongoing supervision and administrative costs.
Q: Do stepchildren inherit from stepparents who die without wills?
Generally not unless the stepparent legally adopted them, as intestacy laws only recognize legal parent-child relationships through biology or adoption.
Q: How long does probate take for intestate estates?
Typically 9-18 months for straightforward estates, though complex situations with disputes, unknown heirs, or difficult assets can take several years.
Q: Can creditors take everything from an intestate estate leaving nothing for heirs?
Valid debts must be paid before heirs receive inheritances, and if debts exceed assets, heirs receive nothing, but heirs are not personally liable for debts exceeding estate value.
Q: What if I can't find all the heirs required under intestacy law?
Administrators must make diligent searches for missing heirs, sometimes hiring genealogists, before courts allow distributing shares of unfound heirs to known heirs or the state.
**Disclaimer: This article is for informational purposes only and does not provide legal, medical, financial, or tax advice. Please consult with a licensed professional to address your specific situation.
