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- Intestacy is a state-law inheritance system
- Only the probate estate follows intestacy rules
- Spouses and descendants often receive priority
- More remote relatives enter the order when closer classes are absent
- Intestate does not mean the state immediately takes everything
- A useful way to read an intestacy statute
- Sources
Key Facts
- State level: Intestate means dying without a valid will controlling some or all of the probate estate.
- State level: Intestacy laws identify heirs and shares, and their formulas differ by state.
- State level: Intestacy governs probate property; assets controlled by survivorship or another nonprobate mechanism are outside the probate estate.
- State level: Surviving-spouse shares can change depending on whether descendants survive and whether they are descendants of both spouses.
“Intestate” describes a person who dies without a valid will. A person can also be partly intestate when a will does not effectively dispose of every part of the probate estate. State intestacy law then supplies the distribution rule for the uncovered property.
Intestacy is a state-law inheritance system
There is no single national inheritance formula for an intestate estate. Each state identifies the relatives who qualify as heirs, their order of priority, and the shares they receive. The result depends on the governing state’s statute and the family relationships that legally existed at death.
California illustrates partial intestacy directly. Probate Code section 6400 provides that any part of an estate not effectively disposed of by will passes to the decedent’s heirs under California’s intestate-succession statutes. Intestacy therefore can apply even when a document called a will exists.
Only the probate estate follows intestacy rules
The probate estate generally includes property held in the decedent’s individual name. Property transferred during life or controlled by a survivorship mechanism is generally outside the probate estate. Intestacy does not replace the separate transfer mechanism governing such property.
This boundary is central to understanding what happens when someone dies without a will. The absence of a will does not necessarily place every asset into the intestate estate; it places probate property without an effective testamentary disposition under the state’s default rules.
Spouses and descendants often receive priority
State statutes commonly place a surviving spouse and descendants near the front of the inheritance order, but the shares are not uniform. Florida’s current statute gives the surviving spouse the entire intestate estate when no descendant survives. It also gives the spouse the entire estate when all surviving descendants are descendants of both spouses and the surviving spouse has no other descendant.
Florida changes the share to one-half when the decedent has a surviving descendant who is not a descendant of the surviving spouse. The spouse also receives one-half when all of the decedent’s descendants are shared with the spouse but the spouse has another descendant who is not the decedent’s descendant.
New York uses a different formula. Under EPTL section 4-1.1, a surviving spouse and issue means the spouse receives $50,000 plus one-half of the residue, while the balance passes to issue by representation. A spouse with no issue receives the whole estate, and issue with no spouse receive the whole estate by representation.
More remote relatives enter the order when closer classes are absent
Texas shows how an intestacy statute can move through family classes when no spouse survives. Texas Estates Code section 201.001 begins with children and their descendants. If none survive, the statute moves to parents, then to siblings and their descendants under its stated conditions, and later to paternal and maternal kindred.
These examples should not be combined into a nationwide family tree. Florida, New York, Texas, and California use their own definitions, formulas, and branching rules. A relationship that produces a share in one state may be treated differently under another state’s code.
Intestate does not mean the state immediately takes everything
Intestacy first directs property through the statutory order of eligible relatives. The possibility of property passing to the state arises only after the applicable statute finds no qualifying taker. The number of family classes searched and the rules for tracing relationships depend on the governing state.
A useful way to read an intestacy statute
An intestacy analysis starts with the probate property left without an effective will provision. The statute is then read in order, beginning with the highest-priority surviving class and applying the state’s method for dividing that class’s share. Later classes matter only when the conditions for earlier classes are not met.
The important distinction is between the general concept and the operative formula. “Intestate” has a stable plain-English meaning, but the people who inherit and the fractions they receive are state-law questions.
