A surviving spouse does not automatically inherit everything if there is no will. Every state puts the spouse first in line under its intestacy laws, but whether the spouse takes the whole estate or shares it depends on who else survives — children from the marriage, children from a prior relationship, or the deceased’s parents can all cut into the spouse’s share. On top of that, some of the most valuable assets a married couple owns pass outside intestacy entirely, controlled by beneficiary forms and how title is held rather than by any statute.
How Much the Spouse Actually Gets
Intestacy statutes rank heirs in order, and the surviving spouse sits at the top. Sharing kicks in only when certain other close relatives are also alive. The Uniform Probate Code, adopted in whole or part by roughly half the states, lays out four scenarios that show how the split usually works.
The spouse inherits the entire estate in two situations: when the deceased leaves no children and no living parents, and when all of the deceased’s children are also children of the surviving spouse and the spouse has no children from anyone else. In both, there’s nobody the law considers a competing heir.
Add a living parent of the deceased and the share shrinks. Under the model code, when the deceased has no children but a parent survives, the spouse takes the first $300,000 plus three-fourths of the balance. The parent or parents split what’s left.
Children change the math the most. If every child of the deceased is also a child of the surviving spouse, but the spouse has additional children from a different relationship, the spouse receives the first $225,000 plus half the balance. And when the deceased leaves children who are not children of the surviving spouse — the classic blended-family situation — the spouse’s share drops to the first $150,000 plus half the balance, with the deceased’s children splitting the rest.
Those dollar figures come from the model code. Individual states set their own thresholds, and they can be higher, lower, or structured differently. The principle is consistent: the more competing heirs who survive, the smaller the spouse’s share.
Community Property Changes the Starting Point
Nine states follow community property rules, and three more let married couples opt in.1Internal Revenue Service. Publication 555 (12/2024), Community Property In those states, most assets acquired during the marriage already belong equally to both spouses. When one spouse dies without a will, the survivor already owns their own half of the community property outright. Intestacy law only reaches the deceased spouse’s half, plus any separate property — things owned before the marriage or received individually as a gift or inheritance.
Commingling is where separate property quietly turns into community property. Deposit an inheritance into a joint account, run deposits and withdrawals through it for a few years, and the funds can become impossible to trace. At that point, courts may treat the whole account as community property, and the burden of proving otherwise falls on whoever claims the money is still separate.2Internal Revenue Service. IRM 25.18.1, Basic Principles of Community Property Law
Everywhere else, property belongs to whichever spouse holds title, and intestacy statutes govern everything titled in the deceased’s name alone.
Assets That Skip Intestacy Entirely
Some of the most valuable things a person owns never touch intestacy at all. These non-probate assets pass directly to whoever is named as beneficiary or co-owner, and the state’s inheritance rules have no say.
- Beneficiary-designated accounts. Life insurance, 401(k)s, IRAs, and pensions pay out to whoever the account holder named — even an ex-spouse the deceased forgot to remove.
- Payable-on-death and transfer-on-death accounts. Bank accounts, brokerage accounts, and in many states vehicle titles can carry a POD or TOD designation that hands the asset to a named person at death.
- Joint tenancy with right of survivorship. Property held this way passes automatically to the surviving co-owner. A jointly titled marital home is the common example.
- Living trusts. Assets moved into a revocable living trust during life are distributed by the successor trustee under the trust document, not by a probate court.
The ERISA Trap
Employer-sponsored retirement plans like 401(k)s and pensions are governed by federal law, which overrides state law on who receives the benefits. Under ERISA, the plan administrator must pay whoever is named in the plan documents, even if a state statute would have revoked that designation on divorce.3Office of the Law Revision Counsel. 29 U.S. Code 1144 – Other Laws The Supreme Court confirmed this in 2001, ruling that a Washington state law revoking an ex-spouse’s beneficiary status on divorce was preempted by ERISA.
The practical consequence is harsh. If someone divorces, remarries, and never updates the 401(k) beneficiary form, the ex-spouse takes the entire account. The current spouse gets nothing from that asset, no matter what the state’s intestacy laws say. This is where families get blindsided, and a five-minute beneficiary update prevents it.
When Being a Spouse Is Itself in Dispute
Intestacy rights depend on being legally married at the moment of death. For most families that’s simple. A few situations complicate it.
Separated but Not Divorced
Couples who live apart without a legal separation or divorce are still married. The estranged spouse keeps full intestacy rights. A formal legal separation, by contrast, is treated like a divorce in most states and cuts off the right to inherit. Just living apart, even for years, changes nothing without a court order.
Common-Law Marriage
A small number of states still recognize common-law marriage, where a couple is legally married without a ceremony or license if they meet requirements like cohabitation and holding themselves out publicly as married. A surviving common-law spouse inherits like any other spouse. Under the Full Faith and Credit Clause, states that don’t allow common-law marriage generally must recognize one validly created in a state that does.
Putative Spouses
If a marriage turns out to be legally invalid — for instance because one partner was still married to someone else — the survivor may have no spousal inheritance rights at all. Some states soften that outcome through the putative spouse doctrine, which protects a person who entered the marriage in good faith, genuinely believing it was valid. Where the doctrine applies, that person can claim the same property rights as a legal spouse.
Debts Come Out First
Before any heir sees a dollar, the estate’s debts get paid. An estate that looks substantial on paper can shrink quickly once creditors are satisfied.
Probate courts follow a priority order. Administrative costs like court fees and attorney fees come first, then funeral and burial expenses, then tax obligations. A surviving spouse’s family allowance — a short-term support payment many states provide during probate — often outranks even tax debts. Secured creditors like mortgage lenders can claim their collateral regardless of the order. General unsecured creditors, including credit cards and medical providers, come last and split whatever remains.
The surviving spouse is generally not personally responsible for the deceased spouse’s individual debts. Those debts get paid from the estate, and if the estate runs out, the debts usually go unpaid. Two exceptions matter: joint debts where both names are on the account, and, in states with necessaries statutes, essential expenses like the deceased’s healthcare costs.4Consumer Financial Protection Bureau. Am I Responsible for My Spouse’s Debts After They Die? Debt collectors cannot suggest a surviving spouse must pay from personal funds unless one of those applies.
The 120-Hour Survival Rule
If both spouses die in the same accident, an obscure rule can decide everything. A majority of states require an heir to outlive the deceased by at least 120 hours to inherit. If the survivor dies within those five days, the law treats each spouse as having predeceased the other, and each estate passes to its own next heirs rather than running the same assets through probate twice.