Intestate Succession

Kentucky State Capital

Intestate succession refers to how property is passed along when a person dies without a will. Whereas a person who dies with a will is usually called a “testator,” a person who dies intestate is often called by the more general term “decedent.” The decedent’s property that will pass by intestate succession is called the “decedent’s estate.”

Each state’s laws provide a plan for how the estate is divided up among the living heirs in the event that the decedent dies intestate. This is one of the major reasons to have a will: under state intestate succession laws, property may be passed to someone the decedent never intended or in a way that he or she wouldn’t approve of. Some states have adopted the Uniform Probate Code (UPC) or use modified versions of it to determine how intestate property is distributed. In addition, some states have other laws that modify the general distribution scheme to further protect and provide for surviving spouses and descendants.

Distribution of Property at Death

There are two separate considerations for the distribution of property: the order of distribution, and the amount or share each heir receives. The order in which heirs receive property may vary from state to state, but generally property first goes to the spouse if there is one, and then to the remaining descendants (for more on the order of distribution, see the UPC section below). To determine how the estate is divided among the descendants, most states use one of these distribution schemes:

  • per stirpes,
  • per capita at each generation, or
  • per capita with representation.

Because heirs are grouped together in classes (e.g., “children” is a class that includes all the children), it is important to know how the shares of property should be divided among the class members. If all of the decedent’s children are alive, the process is simple – under any distribution scheme, the children would all get equal shares, and that’s all there is to it. It gets complicated when some children are already deceased. For example, let’s say the decedent’s estate is to pass to his descendants (his children, grandchildren, great-grandchildren, etc.). If some of the children are already deceased, do their children get to take in their place? If so, how will the shares be divided among them? Those types of questions depend on which distribution scheme the state uses.

Per stirpes – Grandchildren basically stand in for their deceased parent and take in his or her place, in equal shares. For example, if the decedent had three children who each have children of their own, and two of them survive the decedent, each of the two living children will receive one-third of the estate, and the other one-third will be divided equally among the deceased child’s children (i.e., the grandchildren take in their parent’s place).

Per capita with representation – This distribution scheme is similar to per stirpes, except in this situation, all of the decedent’s children are already deceased. In other words, if anyone at the first generation is still alive, distribution will be exactly the same as with per stirpes. However, if everyone at the first generation has died, all of the descendants at the next generation will divide the entire estate equally. This results in a different distribution than per stirpes. For example, say the decedent had a son and a daughter, and the son had one child and the daughter had two children. If either the son or the daughter survives the decedent, the result will be the same under per stirpes and per capita with representation. However, if both the son and daughter are already deceased, under the per stirpes method of distribution, the grandchildren would only get their parent’s share, so the son’s child would get one-half of the estate, and the daughter’s two children would split the other half, or one-quarter each. Under the per capita with representation method, on the other hand, all three grandchildren would get equal shares of one-third each.

Per capita at each generation – In this distribution scheme, property is divided equally among the living heirs at each generation until nothing is left. For example, let’s say a decedent had three children, A, B, and C. A has two children of his own, and B has one child. A and B are deceased, but C and all three grandchildren are alive. Under the per capita method, C would receive one-third and the grandchildren would each receive two-ninths (the remaining two-thirds divided equally among three grandchildren). Note that the result would be different under the per stirpes and per capita with representation methods. Under those methods, A’s two children would equally split his one-third share (one-sixth each), while B’s child would get B’s entire one-third share.

Uniform Probate Code

The Uniform Probate Code, or UPC, which has been adopted in whole or in part by several states, provides that any property of a decedent’s estate that is not disposed of in a will passes by intestate succession. Under the UPC, intestate succession basically goes in this order:

1. initial share to the surviving spouse, as explained below
2. to children or their descendants
3. to parents
4. to siblings
5. to grandparents, aunts, uncles, and their descendants
6. to great-grandparents and great aunts and uncles and their descendants
7. if there are no relatives, property “escheats” to the state

Surviving Spouse
The UPC distribution scheme heavily favors spouses. If the decedent has a surviving spouse but no descendants or parents, the spouse takes the entire estate. If the decedent has surviving parents but no children, the spouse receives the first $200,000 from the estate and three-quarters of the remainder. The surviving spouse receives the first $150,000 from the estate plus one-half of the remainder if all of the decedent’s children are also the spouse’s children and the spouse also has children by someone else. Lastly, if the decedent has children by someone other than the spouse, the spouse receives the first $100,000 from the estate plus one-half of the remainder.

Simultaneous Death Provision
The UPC also has a “survival” requirement of 120 hours, meaning that if an heir dies within 120 hours after the decedent, they are presumed to have predeceased the decedent and so they don’t receive their share of the inheritance. This presumption can be rebutted by “clear and convincing evidence” to the contrary.

Half-blood/Adopted Relatives
The UPC specifically provides that half-blood relatives are to be treated the same as whole-blood relatives for purposes of intestate inheritance. It also provides that adopted individuals are the children of the adopted parents and not the natural parents, meaning that an adopted person cannot inherit from his or her natural parents.

Gifts given to heirs during the decedent’s lifetime will count as “advancements” and be subtracted from their inheritance only if there is written evidence that the decedent intended it that way. Advancements of property are valued at the time they are received or at the time of the decedent’s death, whichever is first.

State Laws

Several states have their own intestate succession schemes instead of strictly following the UPC, but many are at least similar to the UPC. For example, some states provide different shares for surviving spouses than the UPC does (one-third, one-half, etc.), but generally the order of distribution is the same. In addition, other state laws may modify the general distribution scheme. The following are some of the more common state statutes that modify or override general intestate succession rules.

In the few remaining states that recognize them, dower and curtesy rights provide extra protection for a surviving spouse. Historically, the wife’s rights were referred to as “dower” while the husband’s rights were called “curtesy,” and the husband’s rights were greater than the wife’s, but nowadays they are equal rights. A spouse’s dower or curtesy rights come first, before anyone else receives anything either under a will or by intestate succession, and therefore trump all other competing interests, including the rights of intestate heirs, will beneficiaries, and the decedent’s creditors. After the dower or curtesy rights have been satisfied, the remaining property then passes under the will or by intestate succession.

Dower rights are usually different depending on whether the couple had children together. For example, in some states, if the couple had children together, the surviving spouse receives only one-third of the decedent’s real property (real estate) and personal property, and the rest passes as it normally would under the decedent’s will, or via intestate succession if there was no will. Also, the surviving spouse may only get a “life estate” in the real property, meaning she only owns it for the rest of her life, and then it passes to the remaining heirs or will beneficiaries. If the couple had no children together, the surviving spouse typically receives one-half of all real and personal property outright in “fee simple absolute” (absolute ownership). However, this amount is usually subject to creditors’ claims and can be reduced to one-third in order to pay them. Also, regardless of whether there were children, some states only give the spouse a life estate in an “ancestral estate,” which is basically real estate that has been in the decedent’s family for several generations.

In states that recognize dower and curtesy rights, it is extremely important to get a spouse to waive his or her rights when purchasing real estate because a surviving spouse may still be entitled to property that was sold within a certain amount of time before the owner’s death. For example, if someone purchased land from one spouse without obtaining a waiver or consent from the other spouse and then the seller dies, the land may be subject to the surviving spouse’s dower rights and the buyer may be forced to return the property.

Homestead Provisions
Homestead provisions offer even more protection for a surviving spouse and children of a decedent. These laws typically provide that creditors cannot take the spouse’s home, or at least not for a certain amount of time after the decedent’s death, so that the spouse and children won’t lose their home.

Elective Share
Some states allow a surviving spouse to “elect” to take against the decedent’s will and receive what he or she would have received under intestate succession as if no will even existed. For example, if a spouse was left a smaller amount in the will, or was left out of the will altogether, he or she can elect to take against the will, and the court will act as if there was no will at all. This way the spouse gets his or her intestate share, which is often a large portion, if not all, of the estate.

Written by: Walt McCarter