Wills
Dying Without a Will: Intestacy
Simple explanation
Intestacy is the state-law distribution system for probate property not effectively disposed of by a valid will; it does not decide every transfer at death.
- The state sets the order of relatives
- Rules prioritize relatives in an order set by the governing state.
- A spouse's share depends on who else survives
- A spouse's share may depend on descendants, parentage, and family structure.
- Some property never enters intestacy
- Beneficiary-designated, survivorship, and trust property usually follow their own transfer mechanisms.
- Intestacy creates no trust for minors
- Intestacy does not provide personalized trust terms for minors or vulnerable beneficiaries.
Model rule set: Uniform Probate Code § 2-102
The surviving spouse's share: with descendants, or spouse only
The Uniform Probate Code is a model act published by the Uniform Law Commission. It becomes law only where a legislature enacts it, and many states use different shares. The chart follows the model's own text so the moving parts are visible.
A spouse survives. Did any descendant of the decedent survive?
YesSpouse with descendants
-
Every descendant is also the spouse's, and the spouse has no other descendants
Spouse takes the whole intestate estate
Spouse $600,000
§ 2-102(1)(B)
-
Every descendant is also the spouse's, but the spouse has a descendant from another relationship
Spouse takes the first $225,000 plus half of the balance; the rest passes to the decedent's descendants
Spouse $412,500Descendants $187,500
§ 2-102(3) and § 2-103
-
At least one of the decedent's descendants is not a descendant of the spouse
Spouse takes the first $150,000 plus half of the balance; the rest passes to the decedent's descendants
Spouse $375,000Descendants $225,000
§ 2-102(4) and § 2-103
NoSpouse only, no descendants
-
No parent of the decedent survives
Spouse takes the whole intestate estate
Spouse $600,000
§ 2-102(1)(A)
-
A parent of the decedent survives
Spouse takes the first $300,000 plus three-quarters of the balance; the remaining quarter passes to the parent side
Spouse $525,000Parent side $75,000
§ 2-102(2) and § 2-103
SpouseDecedent's descendantsParent sideBars show $600,000 passing by intestacy, using the model's figures.
Source: Uniform Law Commission, Uniform Probate Code (last amended 2019), §§ 2-102 and 2-103. The dollar figures appear in brackets in the model, which means each enacting state chooses its own; § 1-109 adjusts them for changes in the cost of living where a state adopts it, and the model pays them on top of the family allowances and exempt property in Part 4. Under § 2-103 the parent side is the surviving parent or parents, and the 2019 text can also give a share to the descendants of a parent who has died.
States differ, sometimes sharply, and community-property states apply separate rules to marital property. Check the rule in your state's guide or follow the no-will flowchart.
Go deeper
Intestacy law reaches only the probate estate: property the decedent owned alone, with no beneficiary designation, survivorship title or trust behind it. Inside that estate the statute works through relatives in a fixed order, and the spouse's share turns on who else survives, as the model-code chart above shows.
Model rule set: Uniform Probate Code § 2-103
Who takes what does not pass to a spouse
With no surviving spouse, the whole intestate estate follows this order. With a spouse, only the first two groups can share the balance. A group takes only when no one in a group above it survives.
- Descendants Children, grandchildren and later generations, by representation. § 2-103(c)
- Parents One share for each surviving parent. A parent who has died can leave a share to that parent's descendants, such as the decedent's brothers and sisters. § 2-103(d)
- Descendants of parents Brothers, sisters, nieces and nephews, by representation, when no parent survives. § 2-103(f)
- Grandparents One share for each surviving grandparent. A grandparent who has died can leave a share to that grandparent's descendants. § 2-103(g)
- Descendants of grandparents Aunts, uncles and cousins, by representation, when no grandparent survives. § 2-103(i)
- Descendants of a deceased spouse Stepchildren and their descendants, by representation. § 2-103(j)
- The state Only when no heir qualifies under the article, a spouse included. § 2-105
Who typically explores it
Families settling a relative's estate where no will has turned up, blended families where children from an earlier relationship survive, and unmarried partners who assume they will inherit.
Tax lens
Intestacy changes who inherits, not how the estate is taxed. Property passing to a surviving spouse by intestacy can still qualify for the federal marital deduction under IRC § 2056, while shares passing to children or parents do not, and in inheritance-tax states the rate can depend on each heir's relationship to the decedent.
Common mistakes
Assuming everything goes to a spouse
Confusing intestacy with state seizure
Questions about Dying Without a Will: Intestacy
Does the state take the property when there is no will?
Only when no heir qualifies. Intestacy statutes pass the probate estate to relatives in a set order, and under the Uniform Probate Code the property goes to the state only if there is no taker under the statute (section 2-105). Each state writes its own version of that last step.
Does a surviving spouse inherit everything?
Not always. Under the Uniform Probate Code model (section 2-102) the spouse takes the whole intestate estate only when no descendant or parent of the decedent survives, or when every descendant is also the spouse's and the spouse has no other descendants. States set their own shares, and community-property states treat marital property separately.
Does intestacy control life insurance, retirement accounts or jointly owned property?
Usually not. Those assets pass by beneficiary designation, survivorship title or trust terms. Intestacy reaches probate property the decedent owned alone, although an account whose named beneficiaries have all died may be paid to the estate, depending on its terms.
Sources
Sources support general educational claims as of the review date. Official materials can change, and source links do not replace fact-specific professional analysis. Not legal, tax, investment, or accounting advice.