When a person dies without a valid will, state law decides who inherits. These default rules, called intestate succession, send the deceased person’s probate property to surviving relatives in a fixed order of closeness: the spouse and children come first in every state, then parents, then siblings, then more distant kin. The exact shares depend on who is still alive and on which state’s statute applies.
Which Property These Rules Actually Control
Intestacy only reaches “probate assets,” meaning property the deceased person owned individually with no built-in transfer mechanism attached. A great deal of what people own passes outside this system entirely.
Assets that bypass intestate succession include life insurance proceeds, 401(k) plans, IRAs, and any other account with a named beneficiary; real estate or bank accounts held in joint tenancy with right of survivorship, which transfer automatically to the surviving co-owner; payable-on-death and transfer-on-death accounts; and anything titled in a living trust, which follows the trust’s instructions rather than state law.
What is left forms the intestate estate: solely owned bank accounts, vehicles registered only in the deceased person’s name, sole-proprietorship interests, personal belongings, and real estate without survivorship rights. Many states offer simplified handling for small estates, with qualifying thresholds that range from as low as $5,000 to as high as $200,000; $50,000 and $100,000 are the most common cutoffs.
What the Surviving Spouse Receives
The surviving spouse sits at the top of the inheritance hierarchy in every state, but the size of the share depends on who else survived. Under the Uniform Probate Code, a model law adopted in some form by roughly half the states, the spouse’s share runs as follows:1Uniform Law Commission. Uniform Probate Code
- No surviving descendants and no surviving parent: the spouse takes the entire estate.
- All of the deceased person’s descendants are also the spouse’s descendants, and the spouse has no other children: the spouse takes the entire estate.
- No surviving descendants, but a parent survives: the spouse receives the first $300,000 plus three-fourths of the remainder.
- All descendants are shared, but the surviving spouse has children from another relationship: the spouse receives the first $225,000 plus half of the remainder.
- The deceased person has at least one child who is not the surviving spouse’s child: the spouse receives the first $150,000 plus half of the remainder.
Those figures are the baseline UPC amounts and adjust for inflation in states that adopt the code. Non-UPC states use their own formulas, which can look quite different. Some give the spouse a flat percentage, some pair a fixed dollar amount with a fraction, and a few give the spouse the entire estate when the total falls below a set size.
Community Property States
About nine states follow a community property system. Most assets acquired during the marriage are already owned equally by both spouses, so when one spouse dies without a will, only the deceased person’s half of community property runs through intestacy. The surviving spouse keeps their own half outright. Separate property owned by the deceased person alone follows the standard intestacy rules. The practical effect is that a surviving spouse in a community property state often ends up with more of the total than the statute alone would suggest.
How Children and Grandchildren Inherit
After the spouse’s share is set aside, the rest of the estate goes to the deceased person’s children in equal portions. If there is no surviving spouse, the children split the whole estate equally. Blended families generate most of the friction here, because children from a prior relationship may share with a stepparent they barely know, and the formula is indifferent to the actual relationships.
When a Child Has Already Died
If one of the deceased person’s children died first, that child’s share does not disappear. Under the principle of representation (per stirpes), it drops to that child’s own children. Take a $600,000 estate and two children. Each child’s share is $300,000. If one of those children predeceased the parent and left two children of their own, those two grandchildren each receive $150,000. Each family line keeps its share intact.
Adopted, Non-Marital, and Half-Blood Children
Legally adopted children inherit exactly like biological children. Foster children and stepchildren who were never formally adopted do not inherit through intestacy, no matter how close the relationship was in practice. This is one of the sharpest edges of the rules and surprises families regularly.
Children born outside marriage can inherit from both parents, but parentage has to be legally established, typically through a court order, a signed acknowledgment, or genetic testing. The UPC states that the parent-child relationship “extends equally to every child and parent, regardless of the marital status of the parent,” while placing the burden of proof on the child or their representative.1Uniform Law Commission. Uniform Probate Code
Half-siblings inherit the same share as full siblings under the UPC and in most states. A child who was in the womb at the time of death can also inherit, as long as the child is later born alive and survives at least 120 hours after birth.
When There Is No Spouse or Descendant
If the deceased person left no spouse and no descendants, the estate moves up and outward through the family tree. The UPC order is:1Uniform Law Commission. Uniform Probate Code
- Parents. If both survive, they share equally. If only one, that parent takes everything.
- Siblings and their descendants. If a sibling has already died, that sibling’s children (the deceased person’s nieces and nephews) take their parent’s share by representation.
- Grandparents and their descendants. The estate splits between the maternal and paternal sides, passing to grandparents or, if they are gone, to aunts, uncles, and cousins.
If no living relative can be found, the estate escheats to the state. In practice escheat is rare, because courts conduct thorough searches and heir-tracing services can usually identify someone. States typically impose a dormancy period, often three to five years, before taking final ownership, and some let a legitimate heir who turns up later file a claim within a set window.
Heirs Who Are Disqualified or Blocked
The Slayer Rule
A person who intentionally and unlawfully causes the death of another cannot inherit from the victim’s estate. Roughly 47 states have written this into statute, and the rest apply it through common law. The killer is treated as having died before the victim, so the estate moves on to the next eligible heir. The rule covers intestate shares and beneficiary designations alike, and it generally requires a felonious and intentional killing rather than an accidental one. Some states have extended the concept to bar people convicted of elder abuse or financial exploitation of the deceased.
The 120-Hour Survival Requirement
Under the UPC and in many states that follow it, an heir must outlive the deceased person by at least 120 hours (five days) to inherit. An heir who dies within that window is treated as having died first, and the estate moves to the next person in line. Survival has to be shown by clear and convincing evidence. The rule prevents an estate from passing to someone who dies almost simultaneously, only to go through probate a second time.1Uniform Law Commission. Uniform Probate Code
Pending Divorce or Separation Does Not Cut Off a Spouse
A spouse who was in the middle of a divorce when the other spouse died generally keeps full inheritance rights, because the marriage legally continues until a final decree of dissolution is entered. Divorce proceedings are personal actions that end when one party dies. Legal separation likewise does not terminate inheritance rights in most states, though a small number treat a separation decree as blocking an intestate share. Anyone in a contentious separation who wants to prevent the other spouse from inheriting needs a completed will or trust, not just a filed petition.
Debts Come Before Heirs
Before anyone inherits a dollar, the estate pays what the deceased person owed. The administrator publishes a notice to creditors, which starts a filing clock that commonly runs three to six months depending on the state. Claims filed after the deadline are usually barred for good.
If debts exceed assets, the estate is insolvent and heirs receive nothing. Heirs do not become personally responsible for unpaid debts just because they would have inherited. The debts belong to the estate. Most states apply a payment priority along these lines:
- Funeral and burial expenses
- Estate administration costs, including court fees, attorney fees, and administrator compensation
- Debts with federal or state tax priority
- Medical expenses from the final illness
- All other valid claims
An administrator who pays a lower-priority creditor ahead of a higher-priority one can be personally liable for the difference. Whatever remains after valid debts are satisfied is what actually passes under the intestacy rules.