This guide is general legal information, not legal advice, and does not create an attorney–client relationship. Rules change and vary by state — verify current requirements with official sources or a licensed attorney.
If someone dies without a valid will, their property does not go to the state by default, and it does not go to whoever the family agrees should have it. It passes under the intestacy statute of the state where the person was domiciled — a fixed ranking of relatives that operates the same way whether the outcome fits the family or not.
Those statutes were written to approximate what an average person would have wanted. They handle a first marriage with shared children reasonably well. They handle second marriages, long-term unmarried partners, stepchildren, and estranged relatives poorly, because a statute cannot know any of that. Understanding the default is the fastest way to see whether you need to override it.
Key takeaways
- Intestacy is decided by the statute of the deceased person's state of domicile, with real property generally governed by the law where the land sits.
- The surviving spouse's share depends heavily on whether the state uses community property or common-law (separate property) rules, and on whether the deceased left children from another relationship.
- Descendants inherit through representation, but states split between per stirpes and per capita systems, which can change individual shares substantially.
- Stepchildren who were never adopted, unmarried partners, and close friends generally inherit nothing under intestacy.
- Beneficiary-designation accounts, jointly held property, and trust assets pass outside the intestate estate entirely.
The ranking that statutes apply
Cornell's Legal Information Institute describes intestate succession as the process by which property is distributed to heirs when a person dies without a valid will. Statutes vary in the details, but nearly all move down a similar ladder, stopping at the first level with a living taker:
- Surviving spouse and descendants. Children, then grandchildren by representation.
- Parents, if there is no surviving spouse or descendant, or in some states alongside a spouse.
- Siblings and their descendants — nieces and nephews.
- Grandparents and their descendants — aunts, uncles, and cousins.
- More remote kindred, traced by degree of relationship, sometimes with a cut-off point.
- The state, through escheat, only when no qualifying relative can be found. This is genuinely rare.
Adopted children inherit from adoptive parents on the same footing as biological children. Children born outside marriage inherit once parentage is established, which may require a paternity determination. A child conceived before death but born after usually inherits if born alive. Half-siblings take a full share in most states, though a minority give them half.
Practical note: Intestacy is not the same question as who receives death benefits. Life insurance, retirement accounts, and government programmes follow their own rules — survivor benefits administered by the Social Security Administration, for example, depend on the programme's eligibility criteria, not on the state's list of heirs.
The spouse's share is where states diverge most
The single most consequential variable is how the state characterises marital property.
Community-property states
In community-property states — a group that includes Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, with Alaska, Tennessee, and a few others offering elective systems — property acquired during marriage by either spouse is generally owned equally by both. When one spouse dies intestate, the survivor typically keeps their own half of the community property and often takes the deceased spouse's half as well, at least where all children are of that marriage.
Separate property — assets owned before marriage, or received by gift or inheritance — is treated differently and is frequently split between the spouse and the deceased person's descendants or parents. The same characterisation questions arise on divorce, which is why our guide to dividing property in divorce covers overlapping ground.
Common-law (separate property) states
Most states use a separate-property system in which each spouse owns what is titled in their name. Intestacy statutes then carve up the estate. Common patterns include:
- The entire estate to the spouse if there are no descendants and, in many states, no surviving parents.
- The entire estate to the spouse where all descendants are children of both spouses and the survivor has no other children — the approach taken in the Uniform Probate Code maintained by the Uniform Law Commission, which a minority of states have adopted in whole or part.
- A fixed dollar amount plus a fraction of the remainder to the spouse, with the rest to descendants or parents.
- A straight fractional split — commonly one-third or one-half to the spouse — under many older statutes.
| Family situation | Typical community-property outcome | Typical common-law outcome |
|---|---|---|
| Spouse, no descendants or parents | Spouse takes all community and separate property | Spouse takes the entire estate |
| Spouse plus children of that marriage | Spouse takes the community half; separate property often split | Everything to the spouse in some states; a fraction to children in others |
| Spouse plus a child from a prior relationship | Deceased spouse's community half commonly passes to that child | Spouse's share reduced; the balance to descendants |
| Children, no spouse | Equally to children, by representation | Equally to children, by representation |
| No spouse or descendants | To parents, then siblings, then more remote kin | To parents, then siblings, then more remote kin |
Per stirpes, per capita, and why the labels matter
When a child dies before the parent leaving children of their own, states use one of several methods to divide the deceased child's share:
- Strict per stirpes. The estate splits at the level of the children, and each deceased child's share drops to their own descendants. A branch with four children divides one share four ways; a branch with one child takes the whole share.
- Per capita at each generation. Shares are pooled at each generation and divided equally among the living takers at that level, so cousins in the same generation receive equal amounts.
- Modern per stirpes. Division starts at the first generation with a living member, then follows representation below.
Two families with identical relatives can therefore receive noticeably different amounts depending on where the deceased person lived. Wills and trusts can specify the method directly, which is one of many defaults you gain control over by executing the documents compared in our guide to wills and living trusts.
What intestacy never touches
The intestate estate covers only property titled in the deceased person's sole name without a survivorship feature or beneficiary designation. Passing outside it:
- Life insurance proceeds and annuities payable to a named beneficiary.
- Retirement accounts — IRAs, 401(k)s, and pensions — including plans where federal law dictates a spousal default.
- Payable-on-death and transfer-on-death bank, brokerage, and vehicle registrations, and transfer-on-death deeds in states that recognise them.
- Property held in joint tenancy with right of survivorship or, between spouses, as tenants by the entirety.
- Assets already titled to a living trust.
Because these instruments override family expectations, an out-of-date designation can send a large share of an estate somewhere no one intended, whatever the intestacy statute says. Some states revoke a spousal designation automatically on divorce; others do not.
Administering an intestate estate
- Petition for administration. A relative asks the probate court to appoint an administrator. States set a priority list, usually beginning with the surviving spouse, then adult children.
- Bond and letters. Courts frequently require a surety bond in intestate cases because no will waived it. Letters of administration then authorise the representative to act.
- Determining heirs. The court identifies heirs on the record, sometimes with affidavits, genealogical evidence, or a formal heirship proceeding when the family tree is unclear.
- Collecting, paying, and reporting. Assets are inventoried, creditors notified, taxes handled — including any filing obligations described on the IRS estate tax pages — and accountings filed.
- Distribution. The court approves distribution in statutory shares and discharges the administrator. The mechanics track the steps in our step-by-step probate guide.
Two frictions are common. First, statutory shares often force the sale of a house or business that the family wanted kept whole, because minors and remote heirs cannot simply agree to a different split. Second, when a court must appoint a guardian for a minor child's inheritance, the process is slower and more expensive than a trust would have been.
Frequently asked questions
Do stepchildren inherit under intestacy?
Almost never, unless they were legally adopted. Intestacy statutes are built on marriage, blood, and adoption, so a stepchild raised from infancy but never adopted usually receives nothing while a distant biological cousin might. A small number of states recognise limited equitable adoption doctrines, but proof is demanding. A will or trust is the reliable fix.
What happens to a long-term partner who was never married?
Under intestacy, nothing. Unmarried partners are not heirs regardless of how long the relationship lasted, unless the state recognises a common-law marriage that was actually formed under its rules. Partners who want to provide for each other need wills, trusts, beneficiary designations, or joint titling — and should confirm each one is current.
Can heirs agree to divide the estate differently?
Often yes, among competent adults. Many states allow a family settlement agreement, and a qualified disclaimer lets an heir refuse a share so it passes to the next taker, sometimes with tax advantages. Both routes have limits: minors and unborn heirs cannot consent, creditors must still be paid, and disclaimers must meet strict timing and formality rules.
Does the state take the estate if no will exists?
Only if no qualifying relative can be located, which is uncommon because statutes trace kinship well beyond the immediate family. Escheat is a last resort after a search for heirs. The more realistic risk of intestacy is not losing the estate to the state, but distributing it to relatives the deceased person would not have chosen.
Which state's law applies if someone owned property in two states?
Personal property generally follows the law of the deceased person's domicile at death, while real estate follows the law of the state where it is located. That split can mean two different intestacy statutes apply to one estate and an ancillary probate is opened in the second state. Owning land across state lines is a strong reason to plan rather than rely on defaults.
Practical next steps
Look up your own state's intestacy statute and read the outcome it would produce for your household today. If that result matches your wishes, the main gap is convenience and the appointment of the people who will administer the estate. If it does not — and for blended families it usually does not — the fix is a will or trust plus consistent beneficiary designations, as discussed in our guide to estate planning for blended families.
Families already dealing with a death without a will should confirm the heirs, gather title documents and designations, and check the deadlines that apply to any objection, including those covered in our article on contesting a will if a document surfaces later.
