Succession Laws

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Are Succession Laws, and How Do They Determine Property Distribution?

Succession laws are a subset of laws that fall under the umbrella of estate laws. With regard to an estate, succession laws are the laws that determine how property will be distributed upon the death of the estate owner. An estate is essentially the net worth of a person. In other words, an estate is the sum of all an individual’s assets, minus any liabilities that they have at the moment their estate is measured.

Legally speaking, succession is defined as taking the rights of another in the capacity of their successor. In other words, succession refers to the transfer of rights and obligations of the decedent (individual who passed away) to their legal heirs. The distribution of one’s property upon their death is often known as either intestate succession or inheritance succession.

Generally speaking, after one dies, property is distributed in accordance with the decedent’s intentions as they were stated in their will. Inheritance succession thus adheres to the stated wishes of the decedent as outlined in their will. However, if the estate owner dies intestate, succession laws come into play to determine how the property is distributed.

The legal term intestate refers to a person who dies without a will. Importantly, each state has their own laws regarding how intestacy works. Intestate laws are also necessary when the estate owner’s intentions, as stated in their will, cannot be determined or do not cover all aspects of their estate.

Succession laws generally create a preference hierarchy among the potential heirs of the decedent, and will outline the order of priority for the distribution of the decedent’s estate. Close relatives, such as the decedent’s spouse and children will take first priority. This means that close relatives will likely receive distributions from the estate before any others will be considered.

Once the closer relatives have received their share of the estate, more distant relatives will then be considered, if anything is left at that point. Once again, if an individual had a will prior to them dying, the terms of the will must be followed, even if it conflicts with intestate succession. However, if an estate owner dies without a will (dies intestate), then the state laws regarding intestate succession where the decedent lives will determine the distribution of their estate.

It is also important to note that some state laws will give the surviving spouse a specific amount of the marital property that makes up the decedent’s estate, if the decedent was married. Then the remainder of the estate will be divided up according to intestate succession. There are also some states that have laws wherein a surviving spouse receives the entirety of a dead spouse’s estate, and the children must rely on the surviving spouse to grant them any portion of the estate.

As mentioned above, the order of succession will vary from state to state. However, most states succession laws will distribute an individual’s estate to heirs in the following order:

  • Surviving spouse;
  • Children;
  • Parents of the deceased;
  • Siblings;
  • Nieces and nephews;
  • Grandparents;
  • Aunts and uncles; and
  • Cousins.

It is important to note that if the individual has no heirs, and did not leave a will naming an organization or person to leave their estate to, their estate may escheat to the state. What this means is that the government will have a right to claim the unclaimed property and the estate will go to the government.

What Happens if Succession Laws Are Not Followed?

As mentioned above, every state may have different laws regarding succession. For instance, the intestate succession laws in California are very different from the laws in New York or Texas. One of the biggest influences in terms of why states have different laws on succession, is whether or not the state is a community property state.

Community property refers to property that is equally owned by both spouses, and those laws will determine how such property is assigned and divided in states that follow the community property law doctrine.

The following is a list of community property states:

  • Arizona;
  • California;
  • Idaho;
  • Louisiana;
  • Nevada;
  • New Mexico;
  • Texas;
  • Washington; and
  • Wisconsin.

In simple terms, community property is all property that is obtained during marriage, other than separate property. Separate property is typically property obtained prior to marriage, property obtained as a gift, property gained through inheritance, or property obtained as a result of a personal injury lawsuit not attributable to lost income.

Because of the amount of property accumulated over a person’s lifetime, along with the relationships that person has had, succession laws are often violated, whether accidentally or purposefully.

The following is a list of ways that succession laws may be violated:

  • Attempting to claim property in a way that does not follow that state’s succession laws, such as by transferring it to an account maintained in your sole name;
  • Claiming property that rightfully and lawfully belongs to another relative, such as claiming a vehicle that the parties cannot agree on selling or dividing;
  • Claiming more assets or funds than what that person is eligible to receive. For example, if an individual dies with a wife and 3 children all born of the same wife, if one of the children takes 50% or more of the estate, they may face a lawsuit for claiming more than they were eligible to receive; or
  • Failing to return property that may have been erroneously distributed. For example, if an individual receives the entirety of the decedent’s retirement account, and that individual is not the surviving spouse, they will likely need to return the funds so that they may be distributed according to the laws of that state.

If an individual violates state succession laws, the violation may result in them facing criminal charges, as well as civil charges from the other parties interested in the estate. Criminal charges may involve imprisonment, criminal fines, or a combination of both. Additionally, violations of succession laws often involve other crimes being committed at the same time.
An example of crimes a person may also face when violating succession laws include fraud or falsifying a tax return. Thus, a person that violates state succession laws may be found guilty of multiple criminal charges and receive additional criminal punishments on top of the criminal charge related to violating succession laws.

As noted above, there is often more than one party that is interested in an estate. Thus, it is incredibly common for the other parties interested in the estate (i.e. the surviving relatives and heirs) to file a civil lawsuit against the person who wrongfully claims property from the decedent’s estate. Civil lawsuits will often result in monetary damages being awarded to the other interested parties for the losses caused by the defendant.

Additionally, civil lawsuits may also result in punitive damages being sought against the defendant. The plaintiffs in civil lawsuits regarding succession laws are almost always directly related to the defendant, which makes the lawsuits very emotional.

What Else Should I Know About Succession Laws?

Once again, the most important takeaway regarding succession laws, is that succession laws only apply to a person that dies without a will, or where a will does not cover the entirety of the estate. Therefore, proper estate planning will often eliminate the need for succession laws to come into play during probate. Intestacy essentially is the state creating a will for the decedent, and are often modeled after the Uniform Probate Code.

Adopted children are often complicated in terms of estate planning. However, legally adopted children are treated in the same way as biological children, and will often be considered born on the date of their adoption in terms of succession laws. Upon their legal adoption, many states will then remove the adopted child from being considered as an heir in their biological parent’s estates.

However, some states allow for an adopted child to inherit from both their biological and adoptive parents, but do not allow the biological parents to inherit from the child. Typically, the adoption paperwork will outline the rules regarding inheritance. \

Lastly, if any of the estate property is not able to be distributed to an heir, the unclaimed property may then escheat to the state. There will be a time when the unclaimed property may be claimed by an unknown heir, but after that set time the government is allowed to claim title for the property of the estate. The property will then pass to the state government.

Do I Need an Attorney for Help With Succession Laws?

If you are an interested party in an estate, an experienced and local probate attorney may prove to be an invaluable asset. An experienced attorney can help educate you on your state’s succession and intestate laws.

An attorney can also assist you in estate planning tasks such as creating a will, in order to help you avoid state succession laws. and helping with property distributions.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer