If you don’t have a will, your money goes to your closest living relatives in an order set by your state’s intestacy law. A surviving spouse comes first, then children, then parents, then siblings, then more distant blood relatives. The court follows the formula mechanically. Your wishes, your verbal promises, and the quality of your relationships do not enter into it. A cousin you have never met can inherit while a partner of thirty years or a best friend receives nothing.
Some of what you own may skip this process entirely and go straight to a named beneficiary, which is covered further down. Everything else follows the state’s default chain.
The Order the Law Uses
Every state has intestacy laws, and while the specific percentages and dollar thresholds vary, the hierarchy is consistent across the country: spouse, children, parents, siblings, then outward to nieces and nephews, grandparents, aunts and uncles, and cousins. Many states have adopted some version of the Uniform Probate Code and modified it from there.
Closer relatives block more distant ones at every level. If one parent is alive and there is no spouse or child, siblings get nothing. If one sibling is alive, nieces and nephews only inherit if their own parent (your sibling) died before you. The probate court identifies which relatives survive, applies the formula, and divides what is left after debts.
What a Surviving Spouse Receives
A surviving spouse almost always receives the largest share, but how much depends on who else is in the picture.
If you leave no children and no surviving parents, your spouse typically inherits the entire estate. If your only children are also your spouse’s children and your spouse has no children from another relationship, the spouse again usually takes everything.
The math changes when there are children from outside the marriage. Under the Uniform Probate Code framework followed in many states, the spouse receives the first $150,000 plus half the remaining balance, and the rest goes to those other children. Some states instead fix the spousal share at one-third or one-half of the estate. The common thread is that children from a prior relationship split the estate with the current spouse.
Community property states handle this differently from common law property states. In a community property state, each spouse already owns half of what was earned or acquired during the marriage. When one spouse dies, the survivor keeps their own half automatically, and only the deceased spouse’s half runs through intestacy.
Only about ten states currently recognize common-law marriage, where a couple can be legally married without a license or ceremony. The couple generally must have the legal capacity to marry, a mutual agreement to be married, continuous cohabitation, and a reputation in their community as married. Simply living together for years is not enough. Where common-law marriage is recognized, a common-law spouse has the same rights as any other spouse. Where it is not, the surviving partner inherits nothing by default.
How Children Share
If there is no surviving spouse, your children inherit the entire estate in equal shares. If a spouse survives, children split whatever portion the spouse does not take.
Legally adopted children stand in exactly the same position as biological children. The adoption creates a full legal parent-child relationship for inheritance purposes.
If one of your children dies before you but leaves children of their own, those grandchildren step into their parent’s place and divide that parent’s share. This is called per stirpes distribution. Say you have two children, one of whom died before you leaving two kids. Your surviving child takes half the estate, and your two grandchildren each take a quarter.
Half-siblings are treated inconsistently from state to state. Some states give a half-sibling the same share as a full sibling. Others cut a half-sibling’s share in half, except that if every surviving sibling is a half-sibling, each takes a full share.
When There Is No Spouse or Child
If you die with no surviving spouse and no children, your estate goes to your parents. If both parents are gone, it goes to your siblings in equal shares. From there the chain continues outward: nieces and nephews, grandparents, aunts and uncles, cousins. States differ on how far the search extends before it stops.
If no qualifying relative can be found at all, the estate escheats to the state government, which becomes the default owner. In practice this is rare because intestacy laws reach well into the extended family before giving up.
Who Gets Nothing
Intestacy law is strict about who counts as family, and this is where it produces the harshest results. The following people inherit nothing from you by default, no matter how close the relationship:
- Unmarried partners, regardless of how long you lived together or how intertwined your finances were. The only exception is a qualifying common-law spouse in one of the few states that recognizes that status.
- Stepchildren you never legally adopted. Raising a child is not the same as a legal parent-child relationship for inheritance purposes.
- Close friends. Friendship has no standing under intestacy law.
- Charities and causes you supported during your life.
- In-laws, including a son-in-law or daughter-in-law.
Each of these situations can be fixed with even a basic will. Without one, the law treats these people as strangers to your estate.
Assets That Skip Intestacy Entirely
Not everything you own flows through the state’s inheritance formula. Several categories of property pass directly to a named beneficiary or co-owner the moment you die, and those transfers override whatever intestacy would otherwise say.
- Retirement accounts and life insurance. A 401(k), IRA, or life insurance policy with a named beneficiary goes to that person. The designation on file with the plan administrator or insurance company controls, not state law.1Internal Revenue Service. Retirement Topics – Beneficiary
- Payable-on-death and transfer-on-death accounts. Bank accounts, brokerage accounts, and in many states even real estate can carry a beneficiary designation that transfers the asset directly at death.
- Jointly owned property held in joint tenancy with right of survivorship. The property passes automatically to the surviving co-owner; your share never enters the estate.
- Assets held in a revocable living trust, which pass according to the trust document and outside probate entirely.
These designations are powerful. An outdated beneficiary form naming an ex-spouse will still send the asset to that ex-spouse, even if a later will says something different. Keeping beneficiary designations current matters as much as having a will in the first place.
What Changes Procedurally Without a Will
Dying without a will does not only change who inherits. It also changes how the estate gets settled.
Because there is no will to name an executor, the probate court appoints an administrator (sometimes called a personal representative). Courts follow a priority list that usually starts with the surviving spouse, then adult children, then other close relatives. If no one qualifies, the court can appoint a professional.
An administrator almost always has to post a surety bond before the court grants authority to act. The bond protects heirs and creditors against mishandling of estate assets, and it typically costs between 0.5% and 1% of the estate’s value per year, paid by the estate. A will can waive this requirement; without one, the court has no basis to skip it.
Before anyone inherits, the administrator must pay the estate’s debts: funeral expenses, outstanding bills, final income taxes, and other valid claims. Federal debts come first by law. An administrator who pays other creditors ahead of the federal government can be held personally liable up to the amount distributed.2Office of the Law Revision Counsel. 31 U.S. Code 3713 – Priority of Government Claims State law sets the order for everything after that.
Probate without a will generally takes longer. A straightforward estate with a will can close in six to twelve months. Without one, the process runs roughly 25% longer on average because the court must verify heirship, resolve disputes about who qualifies, and exercise more oversight over the administrator. Contested estates can stretch past two years.
Most states offer a simplified procedure for small estates, letting heirs claim assets with minimal court involvement, sometimes using just a sworn affidavit and a death certificate. The dollar threshold varies widely by state.
If You Have Minor Children
When a parent dies without a will and minor children are involved, the court addresses two separate issues: who gets the money, and who raises the children.
Intestacy law handles the money side by assigning the children their statutory share. But a will is the only way to name a preferred guardian. Without one, the court decides. Judges appoint a guardian based on the child’s best interests, typically favoring the surviving parent first, then close relatives such as grandparents, adult siblings of the child, or aunts and uncles. The court may appoint a guardian ad litem to investigate and recommend an arrangement. Some states let a child 14 or older state a preference, though the court is not bound by it.
The child’s inheritance is handled separately from physical custody. Courts generally require a minor’s funds to be held in a supervised account or managed by a court-appointed guardian of the estate until the child reaches adulthood. The financial guardian may not be the same person raising the child. A will combined with a trust for the children’s assets avoids most of this court oversight.
When an Heir Is Disqualified
Being in the right spot on the family tree does not guarantee inheritance. Every state has some version of a slayer rule that bars a person from inheriting if they intentionally and unlawfully killed the deceased. The rule treats the killer as if they died first, moving their share to the next person in line. A murder conviction establishes this conclusively, but it is not always required; courts can apply the rule based on civil proceedings even where no criminal charges were filed or the criminal case ended in acquittal.