When a person dies without leaving a will, it is known as intestacy. In such cases, the person is said to have died “intestate” (without a will). Each state has its own laws that address distribution of the deceased person’s property if there is no valid will. These state laws distinguish between total intestacy and partial intestacy.
Total intestacy is where the person dies with no valid will. Partial intestacy is where the will does not dispose of all the property the decedent (the deceased person) owns.
Will My Spouse Receive Everything if I Don't Leave a Will?
Not necessarily. The amount that a surviving spouse inherits depends on several factors, including your state's laws (whether you live in a community property state) and which of your other relatives survive you.
If the decedent leaves no children, then the spouse might get everything, or they might share some of the property with the decedent's parents. If the decedent did leave children, then the spouse will often share with them, taking half if there is one child, and one-third if there is more than one child.
Some states give the spouse a specific amount or percentage of the property, and divide the rest between the children. In other states, the spouse gets everything; the children must then rely on the surviving parent as a conduit, leaving them anything that remains at her death.
Ultimately, it will depend on the laws of your state and the unique breakdown of your family. For example, if you have grandchildren but their parent (your child) died before you, then your grandchildren may also inherit depending on the surrounding circumstances.
What if the Deceased Spouse is Not My Natural Parent?
If the decedent’s is not the natural or biological parent of the surviving spouse’s children, then those children will not inherit unless the decedent has adopted the children to make them legally their children.
In this case, the surviving spouse will inherit and any of the decedent’s biological and legal children will inherit. Intetastyc will end up excluding any of the decedent’s step-children. So if the testator (person writing the will) has any step-children or non-legal/non-biological children, then they must make specific provisions for them in a will or a trust.
Who Will Inherit Under an Intestacy Scheme?
Each state has different laws regarding how the estate will be distributed when there is no will. Usually, the spouse has the first rights. After the spouse, the descendants are usually next in line to inherit property. Most state laws follow each child's line down until there is a survivor.
If the decedent left no children, then the next people to take possession of property are usually the decedent's parents. If the decedent’s parents are no longer alive, then the next set of heirs would be any siblings. If the decedent has no living siblings, then the decedent’s nephews/nieces would inherit and so on.
In the event that the decedent does not have any close family members, many laws determine that the person who will inherit is the next of kin. Usually the next of kin is determined by who is closest to the decedent on their family tree.
In the event that there are no eligible family members, the decedent’s property will most likely escheat, which means it will go to the state. This is seen by many as an unfavorable result of the property distribution, and a reason why many people commonly wish to have a will in place before they pass away.
How Much Will Each Person Inherit Under Intestacy?
The per capita approach, followed by some states, counts all the surviving heirs of the decedent and gives each heir an equal share. So the more heirs a person has, then the less each heir would receive.
The per stirpes approach, followed by many other states, divides the estate property differently. If the decedent left three children, each would take an equal share (one-third). But, if one of those children is no longer alive at the time, then the one-third share of that child would be shared equally by that child’s heirs.
Do Adopted Children Inherit the Same Amount as Biological Children?
There may be questions as to whether an adopted person (the adoptee) can inherit from the adoptee's natural parents and the adoptee's adoptive parents.
In general, many states remove the adoptee from the families of their genetic parents and consider the adoptee as part of the family of the adoptive parents for legal purposes. Some states place the child in both families for estate inheritance purposes. Other states allow the adopted child to inherit from both the genetic and adoptive parents; however, they may cut off the genetic parents from inheriting from the child.
Do I Need a Lawyer for Help If I Am Deal with Intestacy?
If you have any concerns or legal conflicts involving intestacy issues, you should consult with an estate lawyer. An estate lawyer in your area can inform you of your rights as well as preserve any possible legal remedies you may have.