Anaya Nolan
Dying without a will means that a person has died intestate, and their assets will be distributed according to the rules of intestacy. Intestacy is a concept that applies in jurisdictions that follow common law, where the rules of succession without a will (intestate succession) come into play when an individual has not, or has not fully, exercised their right to dispose of their property in a will. The Uniform Probate Code (UPC) is a set of rules written by experts and recommended for adoption by states, which has been adopted in full by 17 states and in part by many others. The UPC gives the surviving spouse a strong preference in intestate distribution, and the rules vary from state to state.
| Characteristics | Values |
|---|---|
| Definition | Intestacy refers to the state of dying without a will. |
| Rules | Each state has its own rules governing the distribution of assets for people who die without a will. |
| Common Law | Intestacy is a backup measure in common law jurisdictions, where property goes to a spouse, then children and their descendants, then back up the family tree. |
| UPC | The Uniform Probate Code is a set of rules recommended for adoption by states. It gives surviving spouses strong preference in intestate distribution. |
| Adoption | The UPC has been adopted in full by 17 states and in part by many others. |
| Intestacy Rules | Rules vary but generally favour spouses and blood relatives. |
| Partial Intestacy | Occurs when a person dies with a will that only disposes of part of their property. |
| Heir | Someone who is entitled under the statutes of intestate succession to the property of a decedent. |
| Surrogacy | The UPC states that surrogates are not considered the parent unless no one else is. |
| Per Capita at Each Generation | A system where shares are divided equally among the first living descendant generation, then divided again if one or more are dead. |
| Forced Heirship | A concept in civil law and Sharia law where the next-of-kin is given a large part of the estate, beyond the power of the deceased to change. |
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What You'll Learn
Intestacy rules and succession
Intestacy law, also referred to as the law of descent and distribution, establishes a hierarchy for inheritance, prioritising close relatives such as spouses, children, and then extended family members. These rules vary by jurisdiction, and intestacy has a limited application in jurisdictions that follow civil law or Roman law. Intestacy law determines who is entitled to the property from the estate under the rules of inheritance, also known as forced heirship rights.
In most common-law jurisdictions, the law of intestacy is patterned after the common law of descent. Property goes first or in major part to a spouse, then to children and their descendants. If there are no descendants, the line of inheritance moves up the family tree to the parents, the siblings, the siblings' descendants, the grandparents, the parents' siblings, and the parents' siblings' descendants, and usually so on to more distant relatives. Intestacy rules also apply to children conceived posthumously, who inherit as normal children, and surrogates, who are not considered the parent of the child unless no one else can be identified as the parent.
Adopted children typically have full rights as though they were natural children, provided they are legally and formally adopted. Foster children or children living with the deceased but not formally adopted do not receive rights under intestacy. Step-children also do not have the status of children unless they are formally adopted, but half-siblings are considered siblings and have full inheritance rights. Same-sex married couples have full spousal rights to inherit in every state, and in states that recognise common-law marriage, these couples also have full spousal inheritance rights.
The Uniform Probate Code (UPC) has been adopted in full by 17 states and in part by many others, with local variations. The UPC gives the surviving spouse a strong preference in intestate distribution. Under the UPC, where the deceased is survived by a spouse and children who are also children of the spouse, the spouse receives the entire estate. However, descendants' surviving spouses (children-in-law) do not receive anything in most jurisdictions. The UPC also allows for negative wills, where one specifically states that someone does not receive anything. Additionally, the UPC includes the slayer rule, which bars people from inheriting from those they have killed.
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Common law jurisdictions
Intestacy has a limited application in jurisdictions that follow civil law or Roman law, as the concept of a will is less important. In these jurisdictions, the doctrine of forced heirship automatically gives a deceased person's next-of-kin a large part of the estate's property, beyond the power of the deceased to defeat or exceed by testamentary gift.
In common law jurisdictions, intestacy laws are patterned after the common law of descent. Property first goes to a spouse, then to children and their descendants. If there are no descendants, the line of inheritance goes back up the family tree to the parents, the siblings, the siblings' descendants, the grandparents, the parents' siblings, and the parents' siblings' descendants, and usually so on further to more remote degrees of kinship. The operation of these laws varies from one jurisdiction to another.
In the US, many states have adopted all or part of the Uniform Probate Code, but often with local variations. The Uniform Probate Code gives the surviving spouse a strong preference in intestate distribution. The intestate share of a surviving spouse who was married to the decedent for at least 15 years is as follows:
- The entire intestate estate if there is no surviving issue or parent of the decedent.
- $200,000 and three-quarters of the remaining estate if there is no surviving issue but the decedent is survived by a parent or parents.
- $150,000 and one-half of the remaining estate if there are surviving issues, all of whom are also the issue of the spouse, and the spouse has an issue from a prior marriage.
- $100,000 and one-half of the remaining estate if there are surviving issues, one or more of whom are not the issue of the spouse.
The Uniform Probate Code also provides that posthumously conceived children inherit as normal children, and that surrogates do not have a parent-child relationship with their child unless no one else does. The intended parents do if they functioned as parents within two years of the child's birth.
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Uniform Probate Code (UPC)
The Uniform Probate Code (UPC) is a uniform act drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) that governs inheritance and the decedents' estates in the United States. The primary purposes of the act are to streamline and simplify the probate process and to standardize and modernize the various U.S. state laws governing wills, trusts, and intestacy. Probate is the process by which a court confirms and finalizes the contents of a will, including the legal validity of wills, the probate process, the creation of trusts, and other related concepts.
The UPC was first created in 1969 and has been revised several times, most recently in 2019 to conform with the Uniform Parentage Act (2017). The drafting of the UPC began in 1964, and the final version of the original UPC was promulgated in 1969 as a joint project between NCCUSL and the Real Property, Probate, and Trust Law Section of the American Bar Association. Richard V. Wellman served as Chief Reporter on the project.
Although the UPC was intended for adoption by all 50 states, only 15 states adopted the original 1969 version of the code in its entirety: Alaska, Arizona, Colorado, Hawaii, Idaho, Maine, and others. As of 2024, 18 states have adopted the UPC in its entirety, while other states have adopted parts of it. However, it has not become a standardized law across all 50 states, and there are variations from state to state, some of which are significant. For example, in Payne v. Stalley, a Michigan lawyer relied on the official text of the UPC and failed to consider the specific statute adopted in Florida, resulting in a missed filing deadline on a substantial claim.
The UPC consists of seven main articles. Article I covers general provisions, definitions, and jurisdictional topics. Article II deals with wills and intestate succession, or what happens if a person dies without leaving a will. Article III covers the probate of wills and estate administration, including supervised and unsupervised administration. Unsupervised administration is allowed in estates without disputes among beneficiaries and with few assets.
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Partial intestacy
Intestacy is when a person dies without leaving a valid will. Partial intestacy occurs when a person dies with a will, but the will does not fully dispose of their property. Partial intestacy can also occur when a will has not been validly executed, for example, if it is not signed or witnessed. Additionally, if a will no longer deals with the estate because the sole beneficiary at the date the will was signed was the spouse of the deceased, and they have since divorced without naming alternative beneficiaries, a partial intestacy may occur.
In the case of partial intestacy, the law of intestacy will govern the distribution of the individual's estate. This means that the deceased's relatives will inherit their assets, according to a predetermined order. This can result in assets passing to individuals the deceased did not intend to benefit or never met. For example, if the deceased had no living immediate family, their assets could pass to distant cousins.
The rules of intestacy vary depending on the state or jurisdiction. In most common-law jurisdictions, the law of intestacy is based on the common law of descent. Property typically goes first or in major part to a spouse, then to children and their descendants. If there are no descendants, the line of inheritance moves up the family tree to the parents, siblings, and so on. Some states have adopted all or part of the Uniform Probate Code (UPC), which gives the surviving spouse a strong preference in intestate distribution. However, descendants' surviving spouses (children-in-law) generally do not receive anything in most jurisdictions.
It is important to note that the rules of intestacy are just default rules. Individuals can control who will receive their assets after death by creating a valid will or distributing assets during their lifetime. Preparing and regularly reviewing wills can help prevent partial intestacy and ensure that an individual's wishes are carried out after their death.
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Intestacy and inheritance rights of spouses
Intestacy laws govern the distribution of a deceased person's estate when they die without a will or when their will does not correctly dispose of all their property. These laws vary from state to state in the US, but they generally give first rights to property distribution and inheritance to the spouse of the deceased. This is known as the Uniform Probate Code (UPC), and it has been adopted in several states with local variations. The UPC gives the surviving spouse strong preference in intestate distribution, especially if the marriage lasted at least 15 years. In such cases, the spouse may receive the entire estate or a substantial portion of it.
If the deceased is survived by both a spouse and children, the distribution of the estate varies depending on the state. Some states split the estate equally between the spouse and children, while others give preference to the spouse, assuming they have a moral and cultural obligation to support them over adult children. In these cases, the spouse may receive a fixed amount, such as \$50,000, and the remainder is split between the spouse and children.
The UPC also addresses the inheritance rights of adopted children, stepchildren, and posthumously conceived children. Adopted children are generally treated as the children of their adoptive parents and have the same inheritance rights as biological children. Stepchildren, on the other hand, do not have inheritance rights unless they are formally adopted. Posthumously conceived children may inherit if certain conditions are met, including state law permitting it and the decedent's consent.
While intestacy laws provide a framework for estate distribution, they may not cover all scenarios or ensure a fair outcome. In such cases, probate court proceedings may be necessary to determine how assets are distributed. Additionally, each state has its own probate laws that govern the specific percentages inherited by each individual. Therefore, it is essential to consult with a family lawyer to ensure that estate planning complies with the laws of the relevant state.
In summary, intestacy laws in the US generally prioritise the spouse of the deceased in estate distribution, followed by children and other close relatives. The specific distribution varies depending on the state and the presence of surviving spouses, children, or other relatives. The UPC provides a standardised framework, but local variations and probate laws further shape the inheritance rights of spouses and other beneficiaries.
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Frequently asked questions
Intestacy refers to the state of dying without a will.
When someone dies intestate, a state probate court determines how their assets are distributed.
The Uniform Probate Code is a series of rules written by experts in the field and recommended for adoption by states. It has been approved and amended multiple times since 1969, and 17 states have adopted it in full while many others have adopted it in part.
The rules of intestacy vary from state to state, but generally, the distribution of the deceased's estate follows a hierarchy that starts with the surviving spouse, then children and their descendants, and then back up the family tree to parents, siblings, and so on.
Intestacy plays a backup role in common law jurisdictions, where an individual has not fully exercised their right to dispose of property in a will. Property distribution follows the common law of descent, with some states adopting the UPC in full or with local variations.
