Dying Without a Will

Intestate SuccessionIf you die without drafting a valid will, you are referred to as having “died intestate”. When this happens, the distribution of your assets is governed by your state’s intestate succession laws; essentially, the state automatically applies a standard set of rules for the distribution of your property in the absence of any specific instructions you would provide in a will. Each state deals with intestacy slightly differently, though there are some general rules.

The most important factor in determining where your assets will go is whether you are married. A married intestate decedent will typically have all property transferred to the surviving spouse. Some states vary on this point, providing a surviving spouse with only a portion of the estate. This is usually dependent on whether you have any surviving children at the time of your death.

Intestate succession laws usually provide an order of priority for individuals who may inherit your property. A typical order follows consanguinity — which refers to how “related” to you each relative is — and might look like this:

  • If you have a surviving spouse but no surviving children, your spouse takes the entire estate.
  • If you have surviving children but no surviving spouse, your children take the entire estate split evenly among them.
  • If you have both a surviving spouse and surviving children, your spouse and children will split the estate. Usually 50 percent will go to your spouse, and the remaining 50 percent will be divided evenly among your children.
  • If you have neither a surviving spouse nor surviving children, your surviving parents will take the entire estate.
  • If you have no surviving parents, your siblings and their children — if any — will inherit your estate.
  • If you have no surviving siblings and no surviving nieces or nephews, your grandparents and their children — your uncles and aunts — will inherit your estate.
  • If you have no surviving grandparents, uncles, or aunts, your estate will “escheat” to the state.

This is only a general guideline of priority of heirs in intestate succession; state laws may complicate matters slightly. For instance, in community property states like California and Washington, a surviving spouse is automatically entitled to all community property. Also in California, a decedent who has at least two surviving children will leave only one-third of the estate to the surviving spouse and the remaining two-thirds to be divided evenly among the children. In Pennsylvania, a surviving spouse with no children is entitled to the first $30,000 of the estate and half of the remaining property which must be split with the decedent’s parents.

The law gets even more complex when a family includes step-children or half-siblings. For instance, Pennsylvania doesn’t provide the surviving spouse with the typical first $30,000 of the estate if the decedent has any surviving children that are not also the children of the surviving spouse.

In all cases, it is better to have a will or other estate plan that controls the distribution of your property rather than relying on intestacy. Even if you are very confident that your state’s intestate succession laws properly reflect your wishes, the laws may change before you die. If you have questions about how your property will be distributed in your state if you are intestate, consult a probate attorney in your jurisdiction.