Typical Intestacy Distribution Methods

What happens to their property if individuals die without a will? The answer to this question depends on many factors. Because of the variability of the response, it is perhaps best to explain through illustrations. Here are four examples of some of the most common distribution methods under typical intestacy laws.

  • If the Intestate Decedent is Married but has no Children
  • If the intestate decedent is married but has no children, most people would probably think that the decedent’s surviving spouse would take everything in the estate. However, most states distribute between one-third to one-half of the estate to the surviving spouse. Anything remaining generally goes to the decedent’s surviving parent or parents. If both of the decedent’s parents are dead, many state intestate statutes decree that the remaining portion be distributed among the decedent’s surviving brothers and sisters.
  • If the Intestate Decedent is Married and has Children
  • If the intestate decedent is married and has children, it seems reasonable to assume that the surviving spouse/parent would take all of the deceased spouse’s property, especially if the children are minors at the time of the decedent’s death. Yet, most intestacy statutes distribute just one-third to one-half of the decedent’s property to the surviving spouse. The remainder is divided among the decedent’s surviving children, regardless of their ages.
  • If the Intestate Decedent is a Single Person with Children
  • If the intestate decedent is a single person with children, state intestacy laws uniformly decree that the entire estate will be distributed equally among the children, regardless of their ages or circumstances. For example, an adult child will receive the same amount as a minor child, and a wealthy child will take the same share as a child in more modest circumstances. The only determining factor is the blood relation to the decedent. Most states also make no distinction between siblings of whole blood and siblings of half blood. Thus, in a case where a decedent has children from two marriages, each child from both marriages will take an equal share of the decedent’s estate. Likewise, intestacy laws in all states treat legally adopted children the same as full-blooded relations of the decedent. The laws may differ significantly with respect to the decedent’s step-children and illegitimate children.
  • If the Intestate Decedent is a Single Person with no Children
  • If the intestate decedent is a single person with no children, most state intestacy laws favor the decedent’s parent(s) in the distribution of his/her property. If both parents predecease the decedent, many states divide the property among the decedent’s surviving brothers and sisters.

Intestacy laws that distribute property to surviving children and other relatives use various formulas to divide the property. In a state that employs a “per capita” method, the heirs receive equal shares. For example, if there are eleven heirs of a decedent who dies intestate, each will receive one-eleventh of the decedent’s estate. Other states have more complicated schemes that determine the amount of an heir’s share according to the degree of relationship to the decedent. For example, let us say that a decedent has two adult children. One of these children is dead, but has two surviving children (the decedent’s grandchil-dren). So in the present case, the decedent’s surviving adult child would take one half of the estate and the decedent’s two grandchildren would share their deceased parent’s half share, each taking one-quarter of the estate. These examples show that the methods of distributing property under intestacy law can range from fairly simple to quite complex.


Inside Typical Intestacy Distribution Methods