Intestacy and Marital Property


The portion of an estate that is distributed to the spouse of a decedent who dies intestate depends to some extent on other laws governing marital property in the decedent’s state. For example, in states which employ a community property scheme, spouses generally own equal rights to all marital property, regardless of whose name is on the title of the property. But this general rule has some impor-tant exceptions. There are currently nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In a typical situation involving community property for a decedent who dies intestate, the decedent’s share of the community property owned at the time of death will pass automatically to the surviving spouse. Property that the decedent owned individually (e.g. certain property owned prior to the marriage) is usually divided between the surviving spouse and any children. The spouse usually takes one quarter of this individual property and surviving children take the remaining three-quarters of the property. For individuals living in a community property state, the complexity of the intestacy and other probate laws make it is especially important to contact competent legal advice when planning their estates.