When someone dies without a Will, their estate enters a condition called “intestate.” This means that the probate court will need to use intestate succession laws to determine who will inherit property from the estate. Every state, including the District of Columbia, has its own set of intestacy laws. This is a guide to intestate succession by state, where we’ll explain how intestate succession works and provide examples of how laws can vary from state to state. Finally, we’ll provide a link to the intestate succession laws for each state in the country so that you can easily find the laws that apply to you.
What is Intestate Succession?
When a person passes away, their estate passes through a legal process called probate. The probate court determines how that person’s property should be distributed, and who should inherit it. They refer to the deceased person’s Will to guide their decision-making. However, things get a little tricky when a person dies without a Will. The state essentially creates a Will on behalf of that person using intestate succession laws. Through intestate succession, the deceased person’s estate is distributed in a manner that seems most fair and just (in the eyes of the law.)
Each state has its own set of intestate succession laws. The probate court of each state references these laws to determine who should receive the inheritance from an estate. In some cases, the application of intestate succession is simple and straightforward. In other cases, determining heirs can get quite tricky. For more information regarding intestate succession, be sure to read this guide to find out everything you need to know.
The remainder of this guide will focus on the differences in intestate succession by state.
How is the Line of Succession for Inheritance Determined?
Intestate succession laws help determine who is in line to receive an inheritance when someone passes away.
Here are the candidates who are most likely to inherit from the estate, in order of priority: the surviving spouse, direct descendants (child, grandchild, and so on), parents, siblings, nephews and nieces, grandparents, aunts, uncles, and cousins.
In some cases, the answer is determined easily. In other cases, locating individuals who are next in line can be challenging. This is especially true in the case of mixed families, when members of the family have been estranged, when children have died, or living relatives cannot be found. There are even instances where birth or death certificates have been tampered with, making it even more difficult to determine the correct line of succession.
In some states, the succession line can be as distant as first cousins once or twice removed. An individual could find out that they received an inheritance without having any prior knowledge of their distant family member who had passed away.
Law of Intestate Succession by State
In this section, we are going to spotlight intestate succession laws in 5 states:
The purpose is to demonstrate how intestate succession laws may differ from state to state. The application of these laws may lead to different outcomes of how an estate is distributed.
California Intestate Succession Laws
The California Probate Code determines how an estate in intestacy should be distributed. Even if the person who passed away did not live in California, the state’s intestate succession laws apply to any property owned in the Golden State, such as real estate. The code dictates who should inherit property and belongings.
Note that California is a community property state. If the decedent is survived by a spouse and no descendants, then the spouse inherits the entire estate.
If the decedent is survived by a spouse with biological children, then the surviving spouse will inherit one-half of the community property, and then one-half or one-third of the separate property. The proportion is determined by how many biological children were left behind. The children then inherit the remainder of the deceased’s separate property.
Florida Intestate Succession Laws
The Florida Probate Code dictates who will inherit property from an intestacy estate.
If the deceased person is survived by a spouse and no descendants, then the spouse inherits the entire estate. The spouse still inherits everything if they have biological children. If there is a surviving spouse and children who are not biologically related to the spouse (such as from a prior relationship), the spouse inherits half of the estate and the children inherit the remaining half. If the deceased person did not have a surviving spouse but had children, then the children would inherit the entirety of the estate, split equally amongst them.
New York Intestate Succession Laws
In the state of New York, a person who dies without a Will is said to have died intestate. Their property is then distributed according to New York intestate succession laws.
If the decedent has a surviving spouse and no children, then the spouse inherits everything. If there are children but no spouse, then the children inherit everything. Let’s say that the decedent had a surviving spouse and children. The spouse inherits the first $50,000 plus half of the balance. The children inherit the remaining balance. If a child passes away before the decedent but has children of their own, then those grandchildren would take the child’s place in the line of succession and receive the inheritance.
If the decedent had parents but no spouse or children, then the parents inherit everything. It is the same outcome if they were to only have siblings.
Texas Intestate Succession Laws
When someone living in Texas dies without a Will, then their estate automatically enters the intestate probate process. The Texas Probate Code determines how their property will be distributed, after any remaining bills and debts are paid out. When the deceased person is survived by a spouse only (no children or parents), then the spouse inherits everything.
However, if there are parents (and no children), the spouse inherits all of the community property, the separate personal property, and one-half of the separate real estate. The parent(s) inherit the remaining balance.
Let’s say that the spouse has biological children. The spouse inherits all of the community property and one-third of the separate personal property. They retain the right to the real estate for the rest of their life. The children inherit the balance, which they can then pass on to their own children or grandchildren. In the case of non-biological children, the spouse inherits the real estate rights and one-third of the separate personal property. The non-biological children (meaning they are the biological children of the decedent but not of the spouse) inherit everything else, including one-half of the community property.
Nevada Intestate Succession Laws
Nevada, a community property state, applies inheritance law when someone dies intestate.
Things are usually straightforward when a deceased person only had a spouse but no children, siblings, or parents. The surviving spouse inherits the entirety of the estate, including community and separate property. If the deceased person and spouse had children, but no separate property, the spouse still inherits the entirety of the estate.
Other family members begin to inherit parts of the estate when separate property is present. For instance, if there is a surviving spouse and one child, the spouse inherits all of the community property. The separate property is split equally between the spouse and child.
If the deceased person is survived by their parents but no children, spouse, or siblings, then the parents inherit the entire estate. If there are only surviving siblings, then the estate is split amongst them equally. What happens when the decedent had no spouse, children, parents, or siblings? The estate then goes to the closest living relative.
Intestate Succession Laws by State
In the sections above, you may have noticed that our example states shared some similarities. For instance, when someone dies without a Will, then the estate automatically enters intestacy. Every state uses their own form of probate code and intestate succession laws to determine who should inherit the estate. A second similarity shared between states is the level of priority given to the surviving spouse, and then to surviving children. Typically, the surviving spouse inherits everything. In the absence of a surviving spouse, then the children inherit everything equally. In some community property states, inheritances may be split up between the spouse and the children, where the children receive some of the separate property.
However, you begin to see the variations in intestacy laws when the lineage becomes more complex. For instance, when we start looking at extended family members or mixed families where there are children who are not biologically related to the surviving spouse. In Texas, we demonstrated how there are special rules when it comes to real estate specifically.
This is why it’s important to closely examine the rules of the state you live in, as well as any states in which you own property.
Below you will find a list that provides links to intestate succession by state:
Alabama: Alabama Code § § 43-8-40 to 43-8-58
Arkansas: Arkansas Title 28-9-201 to 28-9-220
California: California Probate Code § § 6400-6414
Connecticut: Connecticut General Statutes § § 45a-437 and 45a-438
Delaware: Delaware Code, Title 12, Chapter 5
District of Columbia: District of Columbia Code § § 19-301 to 19-322
Georgia: Georgia Code § § 53-2-1 to 53-2-8
Illinois: Illinois Statutes § § 5/2-1 to 5/2-5
Kentucky: Kentucky Statutes § § 391.010 to 391.170
Louisiana: Louisiana Civil Code Articles 880 to 899
Maryland: Maryland Code § § 3-101 to 3-112
Massachusetts: Massachusetts General Laws, Chapter 190B, Article II
Minnesota: Minnesota Statutes § § 524.2-101 to -123
Mississippi: Mississippi Code, § § 91-1-1 to 91-1-31
Missouri: Missouri Statutes § § 474.010 to 474.110
Nebraska: Nebraska Statutes § § 30-2301 to 30-2312
New Hampshire: New Hampshire Revised Statutes § § 561:1 to 561:21
New Jersey: New Jersey § § 3B:5-1 to 3B:5-14.1
New Mexico: New Mexico § § 45-2-101 to 45-2-114
North Carolina: North Carolina General Statutes § § 29-1 to 29-30
North Dakota: North Dakota Century Code § § 30.1-04-01 to 30.1-04-21
Rhode Island: Rhode Island General Laws § § 33-1-1 to 33-1-11
South Carolina: South Carolina Code § § 62-2-101 to 62-2-114
Tennessee: Tennessee Code § § 31-2-101 to 31-2-110
Washington: Washington Title 11, Probate and Trusts Law
West Virginia: West Virginia Chapter 42, Descent and Distribution
Wisconsin: Wisconsin Chapter 852, Intestate Succession
Create Your Estate Plan Today
We hope that you found this guide on intestate succession by state informative.
Intestate succession laws are meant to serve as a safety net in the absence of a Will. This does not mean that you don’t need a Will.
If you were to pass away without a Will, your legacy would be in the hands of a legal code that is inflexible. This means that if you did not use your voice by establishing an Estate Plan, then you really have no say over how your property will be distributed.
If you’re lucky, your estate will be distributed to your loved ones as you would have wished. However, in many cases, this is not the case. Many of us have mixed families and complicated dynamics. Our vision for how our legacy should be passed on rarely fits into a generic box, and therefore, intestacy laws may not align with our wishes. To avoid leaving your legacy up to an indiscriminate legal process, set up your Will without delay.
At Trust & Will, we’ve made it our mission to create an estate planning solution that is easy, affordable, and accessible. Many people intend to create their Will “one day,” but never get around to it. Procrastination can be attributed to a common misperception that creating a Will is complex and expensive, and that you have to hire an attorney. With Trust & Will, this is not the case! Find out how you can set up your Will in a matter of minutes from the comfort of your own home. Take our free quiz to see where you should get started, or compare our different estate planning options today!
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