Intestate Succession: Who Inherits When There Is No Will

How Intestacy Laws Decide Who Gets What

Every state has an intestate succession statute that creates a default inheritance order for people who die without a valid will. These laws operate like a decision tree, prioritizing close family members and working outward until someone qualifies.

The hierarchy typically runs: surviving spouse, then children (including adopted children), then parents, then siblings, then grandparents, then aunts and uncles, then first cousins. If absolutely no relative can be found — which is rare — the estate escheats to the state.

What catches most families off guard is how specifically these formulas operate. They don't consider who was closest to the deceased, who provided care, or who needs the money most. They follow a rigid statutory formula that treats inheritance as a mathematical calculation.

Spousal Shares Vary Dramatically

The surviving spouse's share depends on the state and the family structure. Under the Uniform Probate Code (adopted by about 18 states with variations), the spouse gets the entire estate if all of the deceased's descendants are also the surviving spouse's descendants and the spouse has no descendants from another relationship. But that share drops sharply in blended families:

• All of the deceased's descendants are also the spouse's descendants, and the spouse has no descendants from another relationship: Spouse inherits 100%
• Surviving parent of the deceased, no children: Spouse gets the first $300,000 plus 75% of the balance
• All of the deceased's descendants are also the spouse's descendants, but the spouse has other descendants: Spouse gets the first $225,000 plus 50%
• The deceased has descendants who are not the spouse's descendants: Spouse gets the first $150,000 plus 50%

Non-UPC states have their own formulas. In New York, the spouse receives the first $50,000 plus half of the remaining estate when there are surviving children. In California, the surviving spouse already owns their half of community property and inherits the deceased's half under intestacy; separate property follows California's separate-property intestacy formula.

Who Gets Left Out

Intestate succession protects legally recognized family relationships. Several categories of people who might expect to inherit receive nothing under default law:

Unmarried partners have zero inheritance rights under intestacy statutes in nearly every U.S. state, regardless of how many years they lived together or shared finances. A partner of 30 years is treated identically to a stranger. Australia is a notable exception — under the Succession Act 2006 (NSW), a de facto partner has the same intestate rights as a spouse after at least two years of continuous cohabitation or if the couple shares a child with the deceased.

Stepchildren are excluded unless the deceased legally adopted them. A stepchild raised from infancy who was never formally adopted has no claim.

Friends and charities generally are not heirs under intestacy. A will or a valid nonprobate arrangement, such as a trust or beneficiary designation, can direct assets to people outside the family tree or to organizations.

Half-siblings are treated differently depending on the state. In California, half-siblings have identical inheritance rights to full siblings. Other states reduce their share.

How Children's Shares Work

When the deceased has children, their inheritance share depends on whether a spouse also survives:

With a surviving spouse, children split whatever remains after the spousal share. If there are three children, each gets one-third of the remaining estate. If one child predeceased the parent but has their own children, those grandchildren typically inherit their parent's share through "representation."

Without a surviving spouse, children divide the entire estate equally. This includes all biological children and legally adopted children, whether from the current relationship or prior ones.

Children born outside of marriage inherit from their mother automatically. Inheritance from the father requires legal paternity — through a court order, signed acknowledgment, or in some states, clear and convincing evidence of the parent-child relationship.

International Comparison

Intestacy rules in the UK, Canada, and Australia follow similar principles but with different thresholds.

In England and Wales, the spouse receives all personal chattels, the first £322,000, and half the remaining estate. Unmarried partners must file a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

In Ontario, the spouse receives a preferential share of $350,000. If the estate exceeds that amount with one child, the surplus splits 50/50. With multiple children, the spouse takes one-third of the surplus.

In Australia (NSW), the spouse takes the entire estate if all children are joint children. For blended families, the spouse receives personal effects, a statutory legacy, plus 50% of the remaining balance.

What to Do If You're an Heir

If someone in your family has died without a will, the intestacy statute in the state where they lived determines your share — not the state where you live or where the assets are located (real estate follows the law of the state where it sits).

The first step is confirming your position on the family tree relative to the deceased, because that determines both your inheritance share and whether you have priority to serve as estate administrator.

The When There's No Will — Intestacy Survival Guide includes state-by-state intestacy charts and a priority-ranking worksheet to identify exactly where you stand in the distribution order.