Inheritance laws in the United States are set state by state, not federally, so the state where a person lived (and where their property sits) decides who inherits, what a surviving spouse is guaranteed, and whether a tax takes a bite before anything reaches heirs. The federal estate tax exemption is $15 million per person for 2026, but a dozen states impose their own estate taxes starting as low as $1 million.1Internal Revenue Service. What’s New – Estate and Gift Tax Figuring out which state’s rules control your situation is the first thing to pin down.
Which State’s Law Controls
Personal property, including bank accounts, investment portfolios, and vehicles, is governed by the law of the state where the deceased person was domiciled at the time of death. Domicile is usually the state where the person maintained a permanent home, voted, and filed tax returns.
Real estate works differently. Land and buildings follow the law of the state where the property is located, no matter where the owner lived. A Florida resident who owned a vacation home in Oregon leaves Florida law in charge of the bank accounts and Oregon law in charge of the vacation home. When out-of-state real property is involved, the estate often has to open a second court proceeding in that other state, adding time and legal fees. A revocable living trust can sidestep this because trust property passes outside court entirely.
What Happens Without a Will
When someone dies without a valid will, the state writes one for them through intestate succession. The hierarchy is broadly similar everywhere: surviving spouse first, then children, then parents, then siblings, then more distant relatives.2Legal Information Institute. Intestate Succession If there is no surviving spouse, children take the whole estate. If there are no children either, the line keeps moving outward until a living relative turns up.
The sharp differences are in how states divide an estate between a surviving spouse and children. Some states give the spouse everything even when there are children. Others split the estate, sometimes handing the spouse a fixed dollar amount (like the first $50,000) plus a share of the rest, with children taking the balance. The split can also turn on whether the children are the biological children of both spouses. When the deceased had children from a prior relationship, several states shrink the surviving spouse’s share so more goes directly to those children.
Spousal Inheritance Rights
A spouse’s rights depend heavily on which of two property systems the state uses.
Community Property States
Nine states follow the community property model: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.3Internal Revenue Service. Publication 555 (12/2024), Community Property In these states, most income and property acquired during the marriage belongs equally to both spouses regardless of whose name is on the account or title. When one spouse dies, the survivor already owns their half of the community property. The deceased spouse can only leave their own half through a will. Property owned before the marriage, or received during the marriage as a personal gift or inheritance, stays separate. If the deceased leaves no will, the surviving spouse typically inherits the decedent’s half of the community property as well, with the details varying by state.
Common Law States and the Elective Share
The other 41 states use a common law system, where property belongs to whichever spouse earned it or holds title. That creates a risk: a wealthier spouse could write a will leaving the other spouse almost nothing. To prevent outright disinheritance, common law states let the surviving spouse reject the will and claim an elective share instead. The traditional share is one-third of the estate, though some states set it higher or scale it to the length of the marriage.4Legal Information Institute. Elective Share
The elective share is not automatic. The surviving spouse has to petition the court, and there is a deadline. Many states follow the Uniform Probate Code’s window: within nine months of death or six months after the will is admitted to probate, whichever is later. Missing it means losing the claim entirely.
Children and Other Descendants
States treat biological children and legally adopted children the same way for inheritance. Once an adoption is finalized, the adopted child inherits from the adoptive parents and generally loses the right to inherit from the biological parents. Stepchildren have no automatic right to inherit from a stepparent unless they were legally adopted or are named in a will. A stepparent who dies intestate leaves nothing to stepchildren.
Children Born After the Will
Most states protect “omitted” children born or adopted after a will was signed. The presumption is that the parent did not deliberately leave out a child they did not yet have, and the omitted child can receive a share as though no will existed. The protection kicks in automatically unless the will contains explicit language saying the exclusion was intentional.
Disinheriting Adult Children
Adult children have no guaranteed right to inherit in most states, but silently leaving them out is not enough to disinherit them cleanly. The will needs a clear, affirmative statement of exclusion; otherwise the omitted child can argue the omission was accidental. Minor children cannot be fully disinherited because state laws require that a parent’s assets support dependent children.
Per Stirpes Versus Per Capita
When an estate passes to multiple generations of descendants, states calculate shares in different ways, and the method matters when a beneficiary has already died.
Under per stirpes (“by branch”), each family branch gets an equal share. If one of three children died before the parent but left two grandchildren, those grandchildren split their deceased parent’s one-third share, each receiving one-sixth of the estate. The two surviving children still get their full one-third each.
Under per capita (“by head”), the estate is divided equally among the living beneficiaries at the closest generation. In the same scenario, the two surviving children each take half, and the grandchildren get nothing. A hybrid known as per capita at each generation gives each surviving child a full share, then pools what’s left for the grandchildren to divide equally. The Uniform Probate Code favors this hybrid, and a growing number of states have adopted it. If a will does not specify, your state’s default rule controls.
Unmarried Partners Have No Inheritance Rights
Unmarried partners inherit nothing under any state’s intestate succession laws. Length of the relationship, shared finances, and living together do not change this. If a partner dies without a will, the survivor is treated as a legal stranger, and the estate passes to blood relatives.
A small number of states that recognize registered domestic partnerships extend spousal inheritance protections to registered partners, including community property rights and elective share claims. Those protections only reach partners who have formally registered in a state that offers the registry. Cohabitation alone confers no inheritance rights. For unmarried couples, the only reliable protection is a will, a trust, or beneficiary designations that name the partner directly.
Assets That Pass Outside the Will
A will only controls assets that go through probate. A large share of most estates passes through other channels that override whatever the will says, and this is where families get caught off guard.
- Retirement accounts (401(k)s, IRAs) and life insurance policies pay out to whoever is named as beneficiary on the account, not whoever is named in the will.
- Property titled as joint tenancy with right of survivorship transfers automatically to the surviving owner. The deed must specifically say “joint tenancy with right of survivorship”; otherwise most states treat it as tenancy in common, which does not include automatic transfer.
- Many states let real estate deeds and financial accounts carry a transfer-on-death designation that passes the asset directly to a named person.
- Assets held in a revocable living trust avoid probate entirely, pass privately rather than through public court records, and can usually be distributed in days or weeks rather than the six to twelve months a probated estate often takes.
If a will says “everything goes to my sister” but the retirement account names an ex-spouse, the ex-spouse gets the retirement account. Outdated beneficiary designations are one of the most common and most damaging mistakes in estate planning.
State Estate and Inheritance Taxes
The federal estate tax reaches only estates above $15 million per person in 2026, a threshold set by the One, Big, Beautiful Bill Act signed into law on August 4, 2025.5Office of the Law Revision Counsel. 26 U.S. Code 2010 – Unified Credit Against Estate Tax Very few estates owe federal tax. State-level taxes reach much further down.
State Estate Taxes
An estate tax is paid by the estate before anything reaches the heirs. Twelve states and the District of Columbia impose one as of 2026: Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, and Washington. Thresholds vary enormously. Oregon’s starts at just $1 million, which can pull in a middle-class homeowner with a paid-off house and retirement savings. Massachusetts starts at $2 million. Connecticut has raised its threshold to match the federal exemption. In the low-threshold states, estate tax planning is not just for the wealthy.
State Inheritance Taxes
An inheritance tax is paid by the person receiving the assets, not the estate. Five states impose one: Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania. Maryland is the only state with both an estate tax and an inheritance tax. Rates depend on the heir’s relationship to the deceased. Surviving spouses are universally exempt. Children and other direct descendants typically pay nothing or very little. The highest rates fall on distant relatives and unrelated beneficiaries, where they can reach 15% or more depending on the state. The same inheritance can be taxed very differently depending on who receives it.
Small Estate Shortcuts
Nearly every state offers a simplified process for settling modest estates without full probate. The most common tool is a small estate affidavit, a sworn document an heir presents to a bank or other institution to claim the deceased person’s property. The heir has to confirm that the estate’s value is under the state’s threshold, that a waiting period has passed since the death, and that no formal probate case has been opened.
The definition of “small” varies dramatically. Some states cap the procedure at $5,000; others allow it for estates up to $200,000 or even $300,000. Only assets that would normally go through probate count toward the limit, so life insurance proceeds, retirement accounts with named beneficiaries, and jointly held property do not factor in. Some states limit the affidavit to personal property like bank accounts and vehicles and exclude real estate; others have a separate affidavit for transferring small amounts of real property. The dollar thresholds, waiting periods, and eligible asset types are all set at the state level, making this one more area where where the deceased lived decides the rules.