Who Inherits an Estate When There Is No Will?

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If a person does not have a will, state law determines who stands to inherit his or her property. These laws are referred to laws as intestate succession. Every state has a series of laws in place to deal with this often common situation. Individuals who do not like the way that the state distributes their property can use the information as a cautionary tale and as an incentive to speak to an experienced estate planning lawyer to create a will.

When Intestate Succession Laws Apply

Intestate succession laws primarily apply when the decedent did not have a will. However, it may apply in other situations, too. For example, if the will is lost or declared invalid, these rules may apply. If there is property that is not specified in the will and no residuary clause, these laws may also apply. These laws may also apply if a provision is not valid or is not adhered to such as when interested parties sign the will.

Uniform Probate Code

Many states have adopted the Uniform Probate Code. However, some states have only adopted certain portions of this code, while others have not adopted it at all. For the states that have adopted it, the Uniform Probate Code states that any property that is not disposed of in a will passes through intestate succession. This property is distributed in a certain order and in a certain amount. The property first goes to a spouse for the initial share, then to the decedentís children or descendants. If the decedent had no descendants or spouse, his or her property goes to his or her parents. If both parents predeceased him or her, the property goes to the decedentís siblings, grandparents, aunts and uncles, any descendants of these individuals, or finally to the decedentís great-grandparents. If none of these relatives are living the property goes to the state.

Under the Uniform Probate Code, the surviving spouse receives the entire estate if the decedent had no children, descendants or parents. However, if the decedent did have descendants with the surviving spouse, the surviving spouse receives the first $150,000 from the estate and one-half of the remainder. If the decedent has children with someone else, the surviving spouse receives the first $100,000 of the estate and one half of the remainder. If the decedent did not have children but did have surviving parents, the surviving spouse receives the first $200,000 from the estate and three-quarters of the remainder.

Under the Uniform Probate Code, half-siblings are treated the same as full-blood siblings as are adopted siblings.

State Laws

States that have not adopted the Uniform Probate Code have their own system for intestate succession. Many are similar to the system used under the Uniform Probate Code. Some have important differences. For example, some states base the surviving spouseís share on the length of time that the couple was married. Some states provide different shares for the surviving spouse, often between one-third to one-half.


A few states still use dower and curtesy principles. These laws provide additional protection for surviving spouses. A wifeís property rights in this situation are often referred to as dower while the husbandís are called curtesy. These rights have precedence over other property rights, including the rights of other heirs and creditors. After dower and curtesy have been provided, the remaining property passes based on intestate succession.

These rights are often different if the couple had children together. In some states, if the couple had children together, the surviving spouse receives one-third of the property and the remainder of the estate passes according to the rules of intestate succession. Additionally, the surviving spouse may only receive a life estate in real property, meaning that the spouse has the right to occupy the home for the rest of his or her life but does not have any remainder interest in the property. However, if the couple did not have children together, the surviving spouse usually receives one-half of all property. However, this amount may be reduced by creditor claims.

Homestead Protections

Homestead protections provide protection for a surviving spouse and a decedentís children that prevent creditors from taking the home after a decedentís death so that the survivors will not be dislocated.

Elective Share

States generally do not allow a spouse to disinherit another spouse. The surviving spouse usually has the ability to elect to take against the decedentís will whatever was left for him or her or to take the amount that would be due to him or her by the laws of intestacy.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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