Intestate Succession Rules

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Intestate Succession Rules

For decedents who fail to prepare a will or do not make complete distributions of their estates, the state’s default statutory scheme—intestate succession rules—will provide the basis for disposition of their assets. 

Given the mobility of our society, it could even be possible for the laws of more than one state to apply to one estate. For instance, for personal property, the law of the decedent’s domicile governs, regardless of where the property is located. For real property, the law of the state in which the property is located governs. In a later chapter, when we discuss living trusts, we will examine a way to eliminate dealing with multiple states’ intestacy statutes (also called ancillary probate). For example: 

Taylor, a New Jersey domiciliary, dies intestate. Taylor owned a personal residence and tangible personal property located in Somerset, NJ. She also owned a weekend home in the Catskills (New York) and kept some valuable jewelry in a safe deposit box in Manhattan. The disposition of her New Jersey home and all her personal property (including the property in the Catskills home and the jewelry) will be governed by New Jersey intestacy statutes. New York intestacy statutes will govern the disposition of the Catskills home.

Order of Preference

Generally, intestacy statutes maintain preferences for near relatives in determining the order of preference for doling out assets. A common statutory pattern provides for the following line of succession:

1. Surviving spouse
2. Children
3. Parents
4. Brothers and sisters and their lineal descendants
5. Grandparents and their lineal descendants
6. Next of kin
7. If no next of kin, then escheat to the state

Although the surviving spouse usually comes first under today’s statutory schemes, at common law, a spouse was not an heir. Accordingly, the decedent’s property went to his descendants or if there were none, then to collateral relatives. After the last in the line of blood relatives was reached, the estate would escheat to the state. The surviving spouse was only entitled to a dower interest (if a widow) or a curtesy estate (if a widower) in the decedent’s property. 

In a dower interest, the widow was only entitled to a life interest in one-third of the land her husband owned in fee simple or fee tail during the marriage. Curtesy was the right of the husband to a life interest, if there were children, in all of his deceased wife’s lands held in fee simple or fee tail. In most jurisdictions today, dower and curtesy have been replaced by some type of elective share provision. 

Under an elective share formula, a surviving spouse can choose whether to force the estate to give a specified share of the estate (often the same as called for by the intestacy statute) to the surviving spouse, or accept the provisions made in the spouse’s will. Although the surviving spouse is often entitled, under the right of election, to an intestate share of the estate, the actual amount received in the distribution often depends on the number and nature of the surviving relatives. 

For instance, in some jurisdictions, if the surviving spouse is the nearest remaining relative, despite the existence of other relatives, the surviving spouse would get the entire estate. In other states, any living parents would also be entitled to a portion of the estate, often splitting the estate 50-50 between surviving spouse and surviving parent(s). For example:

EXAMPLE: Ted was 34 years old when he died intestate last month. He was survived by his 28-year-old wife, Linda. In addition, Ted had a twin brother, Turner, who is single with no children, and both his parents are still alive. In most jurisdictions Linda, as the surviving spouse, would inherit Ted’s entire estate. In jurisdictions that recognize parental inheritance, Linda would likely only get one-half of the estate. The other one-half would go to Ted’s parents.

The distribution amount also changes, depending on whether there are children involved. 

If there is a surviving spouse and descendants ("issue"), the distribution arrangement can get more complicated. In most states, the surviving spouse would only be entitled to a portion of the estate, ranging from one-third to one-half; the balance would go to the descendants. For example: 

EXAMPLE: Ted was 34 years old when he died intestate last month. He was survived by his 28-year-old wife, Linda and their six-month-old daughter, Alexandria. In addition, Ted had a twin brother, Turner, who is single with no children, and both of his parents are still alive. In most states Linda, as the surviving spouse, would take less than the entire estate, such as one-third or one-half of the estate; the balance would go to Alexandria. For example, in New York, Linda would get $50,000 and one-half of the residue and the balance would go to Alexandria. N. Y. Est. Powers & Trusts Law § 4-1.1(a)(1).

In a few states, the surviving spouse inherits the entire estate if all the decedent’s surviving descendants are also descendants of the surviving spouse. For example:

Ted was 34 years old when he died intestate last month. He was survived by his 28-year-old wife, Linda and their six-month old daughter, Alexandria. In addition, Ted had a twin brother, Turner, who is single with no children, and both of Ted’s parents are still alive. Linda, as the surviving spouse, would take the entire estate, since Alexandria is a descendant of both Ted and Linda.

In other jurisdictions, the surviving spouse inherits only one-half of the estate if the decedent was survived by descendants from an earlier marriage. For example:

Ted was 34 years old when he died intestate last month. He was survived by his 28-year-old second wife, Linda and their six-month old daughter, Alexandria. In addition, Ted had two children from an earlier marriage. In many jurisdictions, Linda, as the surviving spouse, would take less than the entire estate, such as one-third or one-half of the estate; the balance would go to Ted’s three children, Alexandria from his current wife and two children from the previous marriage.

As illustrated in the examples, intestacy statutes can vary widely in how they determine who is entitled to inherit a decedent’s estate. The complexity of these schemes certainly provides another reason why it is so important to do estate planning, rather than leave those decisions to the state statutory schemes.

Escheat to the State

States also differ in how far out in the number of relationships their statutes will go looking for heirs before they stop. Some only go as far as to grandparents and their issue. In Chart I below, the line would start with grandparents, moving next to uncles/aunts looking for surviving heirs. As one moves further down the line in the order of statutory succession, the relationship to the deceased becomes more remote. Many states limit which issue of the grandparents can be considered. For example, in New York, the statute goes as far as great-grandchildren of the grandparents. In Chart I this would be first cousins, once removed (twelfth degree of relation). N. Y. Est. Powers & Trust Law § 4-1.1(a)(7). 

Sebastian was 98 years old when he died intestate last month. His wife, Donna, died 20 years ago and they never had any children. In addition, his parents died many years ago and his only sister, Felicia, died 10 years ago. She had never married nor had she any children. There are no other surviving relatives in Sebastian’s family. Since Sebastian has no other next of kin, his estate will escheat to the state.

Division of Shares

After allotting for the surviving spouse’s share of the estate, intestate statutes also have provisions for how property should be divided if there is more than one descendant (children and/or grandchildren) who is entitled to inherit from the estate. Again, the methods differ by state. Generally, there are two methods of taking shares that are widely used: per capita and per stirpes distribution.

In a per capita distribution, each descendant takes an equal share of the assets.

For example:

In Chart II, A dies intestate, leaving grandchildren L, M, and N and great-grandchildren X and Y as the only surviving relatives. Under a per capita distribution, each party will receive 1/5th of the estate, since there are five of them.

In a per stirpes distribution, each descendant takes a share of the assets by right of representation. In other words, a descendant's share is determined by the share that person’s ancestor would have been entitled to. For example:

In Chart II, A dies intestate, leaving grandchildren L, M and N and great-grandchildren X and Y as the only surviving relatives. Under a per stirpes distribution, we first look at what share the generation with living relatives would be entitled to, namely, the grandchildren L, M, N and O. If they were all still living, each would have been entitled to 1/4th of the estate, since there are four of them. L, M and N are still entitled to their 1/4th share. However, since grandchild O is deceased, his issue, X and Y, would take O’s share (1/4th) and split it 50/50. So, X and Y would each be entitled to 1/8th (1/4 * ½) of the estate. 

In most states, a different division applies if all the living descendants are from the same generation. In that case, per capita distribution applies rather than per stirpes and each party shares equally in the estate. See In re Martin’s Estate, 120 A. 862 (Vt. 1923).

For example:

In Chart III, A dies intestate, leaving grandchildren J, K and L as his next of kin. Since the grandchildren are in the same generation, each is entitled to 1/3rd of the estate.

An effective way to determine the distribution scheme of a particular state is to diagram the statute’s method, as illustrated in Charts II and III.

Special Consideration for Step-siblings, Non-marital and Adopted Children

As with other intestacy provisions, states also differ as to how they treat relatives who only have one common ancestor, more commonly known as half-bloods or step-siblings. In most states, step-siblings inherit in the same manner as full siblings. For example: 

When Geraldo was married to his first wife, Wanda, they had a son, Charlie. Subsequently, while Geraldo was married to his second wife, Tina, they had a son, Fred and a daughter, Elizabeth. Since Charlie only has one parent in common with Fred and Elizabeth, he is their half-brother. Fred dies intestate. In most states, Charlie and Elizabeth would split Fred’s estate equally, even though they are only half-brother and sister, whereas Fred was Elizabeth’s full brother.

In those states that do not recognize this view, the half-siblings would only be entitled to a one-half interest instead of a whole interest in the estate.

The intestacy statutes also have special rules for determining how non-marital children or illegitimate children inherit from an estate. Historically, at common law, illegitimate children were treated as being children of no one and had no right to inherit from anyone. In addition, only their issue could inherit from them.

Today, it depends on whether the inheritance is from the mother or father. Given more certainty of maternity, nearly all states permit a non-marital child to inherit from its mother and her family. In addition, these maternal relatives can also inherit from the non-marital child. For example:

Cynthia’s affair with her married boss, Jeffrey, resulted in the birth of her daughter, Lilly. Jeffrey and his wife had grown children. When Lilly was three, Cynthia died of cancer. There is no question Lilly is Cynthia’s child. As such, she is entitled to inherit from her estate.

In most states, a non-marital child is not automatically considered a child of the father. Rather, he would have to legitimate the child by marrying the child’s mother or, at the very least, by acknowledging that the child is his. [Note: If a marriage takes place, a subsequent annulment will not affect the child’s ability to inherit. The child will maintain the same inheritance rights as a child born in wedlock.] For example:

Cynthia’s affair with her married boss, Jeffrey, resulted in the birth of her daughter, Lilly. Jeffrey and his wife had three grown children. When Lilly was three, Jeffrey’s wife died of cancer. Subsequently, Cynthia and Jeffrey married. If Jeffrey dies intestate, Lilly, as well as Jeffrey’s grown children, will all be entitled to a share of his estate.

Although states have the power to enact their own intestacy statutes, any schemes that completely ban a non-marital child from inheriting would probably be considered unconstitutional as a violation of the Equal Protection clause of the Fourteenth Amendment. See e.g., Trimble v. Gordon, 43 U.S. 762 (1977). Yet, establishing stringent procedures for proving a father’s paternity would more than likely pass constitutional muster. For example, many states require that a finding of paternity be made during the father’s lifetime for the child to be entitled to inherit from the non-marital father’s estate. See e.g., Lalli v. Lalli, 439 U.S. 259 (1978).

Adopted children are also treated differently by various intestacy statutes. In all states, the adopted child is the child of the adoptive parents, thereby making him eligible to inherit from the adoptive parents. At the same time, most states cut off the adopted child’s right to inherit from his natural parents. For example:

Cynthia’s affair with her married boss, Jeffrey resulted in the birth of her daughter, Lilly. Cynthia decided to put her daughter up for adoption. In most states, Lilly would no longer be able to inherit from Cynthia (her biological mother) or her biological family. Instead, she would be eligible to inherit from her adoptive family.

An exception to the strict application of the rule is if the child is adopted by the spouse of a natural parent. For example:

Cynthia had an affair with her married boss, Jeffrey. Jeffrey and his wife, Helen, had three children. Helen later died of cancer. Subsequently, Cynthia and Jeffrey married and Cynthia adopted Jeffrey’s three children. Despite this adoption, Jeffrey’s three children would still be entitled to inherit from Helen’s family.

Advancement

An “advancement” is a gift made by an intestate person during his life to a relative, with the intent that it be applied against any share in the intestate person’s estate to which the recipient may later be entitled. In computing the estate distributions, the amount of the advancement must first be added back into the estate. Next, each beneficiary’s share of the estate is calculated. Lastly, the advancement is subtracted from the beneficiary’s share of the estate before an actual distribution is made to that person. For example:

Paul has three sons, Ed, Mark and Joe. Ed and Mark are both successful in their careers as surgeons. Joe is the youngest and is a struggling actor. To help Joe pay his rent in New York City, Paul has given Joe $6,000, clearly stating that this amount is an advance inheritance. When Paul dies intestate, he leaves a net estate of $39,000. Before determining the amount of the estate, Joe’s $6,000 gift has to be added back, resulting in an estate of $45,000. Each brother would then be entitled to inherit $15,000 from their father’s estate. However, Joe has already received $6,000. Accordingly, that amount must be subtracted from his $15,000 share, leaving a net inheritance for Joe of $9,000.

Renunciation

An heir may decide to renounce (disclaim) the right to intestate succession, often for tax saving reasons. The inheritance would instead pass directly to the next heir in line. For example:

Paul has three sons, Ed, Mark and Joe. Ed and Mark are both married, have two kids each and are successful in their careers as surgeons. Joe is the youngest, single and a struggling actor living in New York City. When Paul dies intestate, he leaves a net estate of $150,000. Each brother would then be entitled to inherit $50,000 from their father’s estate. However, both Ed and Mark do not wish to inherit the money directly. Instead, they would prefer that it go to their children. If they were to take the inheritance and then give it to their children, they would probably be liable for gift tax. Instead, they decide to renounce the inheritance; their children will split the $50,000 instead. Joe, of course, would still be entitled to his $50,000 share.

To effectively renounce an inheritance, most states require that the renunciation be in writing, signed by the person renouncing, describe the property in question and be filed with the probate court no more than nine months after the decedent’s death.

For example:

In Chart III, A dies intestate, leaving grandchildren J, K and L as his next of kin. Since the grandchildren are in the same generation, each is entitled to 1/3rd of the estate.

An effective way to determine the distribution scheme of a particular state is to diagram the statute’s method, as illustrated in Charts II and III.

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