When someone dies without a will, the surviving spouse’s intestate share is set by state statute, and it is almost always the largest portion of the probate estate. In many situations the spouse inherits everything. The exact amount depends on which other relatives survived, whether the assets are community or separate property, and the specific formula in the state where the deceased lived.
What the Spouse Inherits Based on Who Else Survived
The calculation hinges on the family tree. The Uniform Probate Code is the model many states follow, though states modify the dollar thresholds and the percentages. Under the UPC framework:
- If the deceased left no descendants and no surviving parents, the spouse inherits the entire intestate estate. The same result applies when all of the deceased’s descendants are also descendants of the surviving spouse and the surviving spouse has no other children.
- If the deceased’s parents survived but there are no descendants, the spouse receives the first $300,000 plus three-quarters of the balance. The parents split what remains.
- If all of the descendants are children of both spouses but the surviving spouse has children from another relationship, the spouse receives the first $225,000 plus half of the balance. The descendants divide the rest.
- If one or more of the deceased’s descendants are not children of the surviving spouse, the spouse receives the first $150,000 plus half of the balance. The deceased’s children from the other relationship share the rest equally.
States that have not adopted the UPC use their own formulas. Some give the spouse a flat fraction such as one-half or one-third rather than a dollar amount plus a percentage. Others set different thresholds or draw the family-composition categories differently. The only reliable way to know the exact split is to read the intestacy statute in the state where the deceased was domiciled.
Community Property Changes the Math
About nine states use a community property system, and the distinction fundamentally changes what the spouse receives. Community property includes most assets either spouse earned or acquired during the marriage. Each spouse already owns half by operation of law, so when one dies, the intestacy statute only controls the deceased’s half.
In most community property states, the deceased’s half of community property passes entirely to the surviving spouse under intestacy. The practical effect is that the survivor ends up with all of it. Separate property, meaning assets one spouse owned before the marriage or received as a gift or inheritance during it, follows a different formula. The spouse might receive only one-half or one-third of separate property when there are surviving descendants, with the rest going to the children.
Common law states, which make up the majority, do not split ownership of marital earnings this way. All property titled in the deceased’s name goes into the probate estate and is distributed under the intestacy formula, regardless of when or how it was acquired.
Which Assets the Intestate Share Covers
Intestacy rules only govern probate assets: property owned solely by the deceased with no beneficiary designation or survivorship feature. A house titled in the deceased’s name alone, a personal bank account, a vehicle, and physical belongings like furniture or jewelry are typical probate assets.
Everything else bypasses the intestate process. Life insurance with a named beneficiary pays directly to that person. Bank and investment accounts with payable-on-death or transfer-on-death designations pass automatically to whoever is listed. Property held in joint tenancy with right of survivorship becomes the sole property of the surviving co-owner the moment the other dies. Assets inside a living trust follow the trust document.
Two consequences follow. A spouse may inherit relatively little through probate yet still receive the bulk of the couple’s wealth through beneficiary designations and joint accounts. The reverse also happens: a spouse who assumed everything was taken care of may discover that key assets were titled in ways that send them elsewhere.
Who Counts as a Surviving Spouse
Only a legally recognized spouse at the time of death has intestate rights. A ceremonial marriage with a license and officiant qualifies in every state. A handful of states also recognize common-law marriages, where two people live together, agree to be married, and hold themselves out publicly as a married couple. Where recognized, a common-law spouse has the same inheritance rights as one who had a formal ceremony.
Divorce ends intestate rights, but only once it is final. Filing a petition or reaching a separation agreement does not cut off a spouse’s claim in most states. Until a judge signs the final decree, the marriage still exists and so do the rights that come with it. If one spouse dies during a drawn-out divorce, the other may inherit a substantial share.
Many states also impose a survivorship period, commonly 120 hours. The surviving spouse must outlive the deceased by that window to inherit. If both spouses die in the same accident and neither clearly survived the other by the required period, each estate is distributed as if the other spouse predeceased them.
When a Spouse Is Barred From Inheriting
A spouse responsible for the deceased’s death cannot inherit under what is commonly called the slayer rule. A criminal conviction for murder or voluntary manslaughter triggers this disqualification in virtually every state. Some states also apply it based on a civil court finding by a preponderance of the evidence, which means a spouse can be disqualified even without a criminal conviction. The disqualified spouse is treated as if they predeceased the deceased, and the estate passes to the next eligible heirs.
Abandonment or nonsupport can also disqualify a spouse in certain states, though these provisions are less common and harder to prove. Grounds for disqualification vary enough from state to state that blanket assumptions are risky.
Protections on Top of the Intestate Share
Most states provide additional allowances a spouse can claim in addition to the intestate distribution. These come off the top of the estate before creditors and other heirs receive anything.
Elective Share
In common law states, the elective share, sometimes called the right of election, lets a surviving spouse claim a minimum percentage of the deceased’s estate even when the deceased tried to leave less. It matters in intestacy when the deceased moved significant assets outside of probate during their lifetime in ways that shrank the estate. The elective share typically ranges from about one-third to one-half, though the exact percentage and the assets counted vary by state. Some states look only at probate assets; others use an augmented estate that includes certain lifetime transfers, joint accounts, and trust assets.
Homestead, Family Allowance, and Exempt Property
Many states grant a homestead allowance, which protects the family home from creditors and may give the spouse the right to remain in the residence regardless of how the rest of the estate is distributed. A family allowance provides cash for living expenses during the months it takes to settle the estate. Exempt property rights let the spouse claim household furnishings, automobiles, and personal effects up to a set dollar value before any other distributions are made.
When a Prenup or Postnup Overrides the Default
A prenuptial or postnuptial agreement can rewrite these rules. Marital agreements often include a waiver of intestate rights, where one or both spouses give up their claim to the other’s estate. For a waiver to hold up, it generally must be in writing, signed by the spouse giving up the right, and supported by fair financial disclosure from both sides.1California Law Revision Commission. Memorandum – Probate Law (Waiver of Rights in Spouse’s Estate)
Courts scrutinize these waivers carefully. A spouse who can show they signed without understanding what they were giving up, or that the other spouse hid assets or income during disclosure, has a real chance of getting the waiver thrown out. Vague language causes problems too. An agreement that says “each party waives all claims” without specifically naming intestate succession, elective share, homestead, family allowance, and exempt property may be found too ambiguous to enforce.
A valid marital agreement does not override beneficiary designations on life insurance, retirement accounts, or payable-on-death accounts. Those are controlled by the account documents. If the deceased named their spouse as beneficiary on a life insurance policy and also signed a prenup waiving estate rights, the spouse still collects the life insurance unless the beneficiary designation itself was changed.