Montana Inheritance Laws: Who Inherits When There's No Will

When someone dies without a valid will in Montana, their property does not automatically go to whoever expects it or needs it most. Instead, a rigid statutory formula takes over — and the results can surprise families who assumed the law would follow common sense.

Montana's inheritance laws for people who die without a will are called intestate succession statutes, codified primarily under Title 72, Chapter 2 of the Montana Code Annotated. These rules determine who receives the probate estate, in what shares, and in what order of priority.

The Foundation: Probate vs. Non-Probate Assets

Before applying intestate succession, you need to understand that these laws govern only the probate estate. Assets that pass by operation of law outside of probate are not affected by intestate succession — they go to whoever is named in the controlling document regardless of what any inheritance law says.

Non-probate assets that bypass Montana's intestate succession laws include:

• Life insurance policies with a named living beneficiary (not the estate)
• Bank accounts with a Payable on Death (POD) designation
• Investment accounts with a Transfer on Death (TOD) designation
• Retirement accounts (IRAs, 401(k)s) with a living named beneficiary
• Real estate held in joint tenancy with right of survivorship
• Property transferred via a Transfer on Death deed (beneficiary deed)
• Assets held in a living trust

Only the property that the decedent owned solely in their own name, without any beneficiary designation or survivorship arrangement, passes through the probate estate and is therefore subject to intestate succession.

What the Surviving Spouse Receives

Montana's intestate succession rules give the surviving spouse a significant share of the estate, but the exact amount depends on the family structure.

If the decedent is survived by a spouse and no descendants (children, grandchildren): The surviving spouse inherits the entire intestate estate.

If the decedent is survived by a spouse and descendants who are also the descendants of the surviving spouse: The surviving spouse still inherits the entire intestate estate. In other words, if all of the decedent's children are also the surviving spouse's children, the spouse takes everything.

If the decedent is survived by a spouse and descendants who are not also descendants of the surviving spouse (for example, children from a prior relationship): The surviving spouse receives the first $300,000 of the estate plus three-fourths of the remaining balance. The decedent's descendants share the other one-fourth.

If the decedent is survived by a spouse and the spouse also has descendants from a different relationship who are not the decedent's descendants: The surviving spouse receives the first $225,000 plus one-half of the remaining balance. This is the "blended family" scenario where the decedent has children and the surviving spouse has separate children.

These dollar thresholds reflect the Uniform Probate Code provisions that Montana has adopted, and they may be adjusted periodically by the legislature for inflation.

The Descent of Inheritance When There Is No Surviving Spouse

If there is no surviving spouse, or after the spouse's share has been calculated, the remaining estate passes in this order:

Descendants first: The decedent's children inherit in equal shares. If a child has predeceased the decedent but left living children (grandchildren of the decedent), those grandchildren collectively take their parent's share in equal parts — this is called per stirpes distribution.

Parents second: If the decedent left no surviving descendants, the estate passes to the decedent's surviving parents in equal shares. If only one parent survives, that parent inherits the entire estate.

Siblings and their descendants third: If no descendants or parents survive, the estate passes to the decedent's siblings in equal shares (or their descendants if a sibling has predeceased the decedent).

Grandparents and their descendants fourth: If none of the above survive, the estate splits between the maternal and paternal lines — one-half to the maternal grandparents or their descendants, one-half to the paternal grandparents or their descendants.

More distant relatives: If no grandparents or their descendants can be found, the estate passes to progressively more distant relatives on alternating paternal and maternal lines.

Escheat to the state: If absolutely no heirs can be identified after a diligent search, the estate escheats to the state of Montana.

Half-Siblings and Adopted Children

Montana inheritance law treats half-siblings (who share one common parent with the decedent) as full siblings for the purposes of intestate succession. A half-brother or half-sister inherits the same share as a full sibling.

Adopted children are treated exactly the same as biological children under Montana law. An adopted child has full inheritance rights from and through the adoptive parents, and the adoptive relationship severs the legal inheritance connection to the biological parents (with narrow exceptions for step-parent adoptions).

A child born to unmarried parents has inheritance rights from the mother automatically. Inheritance rights from the father require that paternity be established — either through the father's marriage to the mother after the birth, an acknowledgment of paternity, or a court finding of paternity.

Statutory Allowances Come Before Inheritance Shares

Even in an intestate estate, the surviving spouse and dependent children are entitled to specific statutory allowances that come before any inheritance distribution. These allowances take priority over unsecured creditor claims, including Medicaid recovery.

Under Montana law, the surviving spouse is entitled to:

• Homestead Allowance: $22,500 (MCA 72-2-412)
• Family Allowance: Up to $27,000 for maintenance during the administration period (MCA 72-2-414)
• Exempt Property Allowance: Up to $15,000 in household furnishings, vehicles, and personal effects (MCA 72-2-413)

These allowances — which total up to $64,500 — are paid from the estate before the intestate shares are distributed. They protect the surviving spouse and minor children from being left without resources while the estate is being settled.

If the estate is modest and these allowances consume a significant portion of its value, the remaining amount available for distribution under the intestate succession rules may be small.

Why the Absence of a Will Creates Practical Problems

Beyond the question of who inherits, dying without a will in Montana creates administrative complications.

Without a will, no one has been nominated to serve as Personal Representative (the Montana term for what most states call an executor). Montana's Uniform Probate Code provides a priority hierarchy for who can apply for the role, starting with the surviving spouse and moving through the heirs — but if multiple people have equal priority and cannot agree, the District Court must intervene to appoint someone.

Without a will, there are also no instructions about how specific items of personal property should be distributed. Family members may agree informally, but without written direction, disputes over furniture, jewelry, vehicles, and sentimental items are common.

If there are minor children and the other parent is not living, the absence of a will means there is no designated guardian named. The court will appoint a guardian based on the best interests of the child, without guidance from the deceased parent.

If the decedent was in a long-term relationship but not legally married, their partner receives nothing under intestate succession regardless of how many years they lived together. Montana does not recognize common law marriage formed after 1998, and even if a common law marriage exists, the evidentiary burden to prove it falls on the surviving partner.

If you are currently settling a Montana estate without a will and need to work through the intestate succession process alongside the other required administrative tasks, the Montana Estate Settlement Guide covers the step-by-step sequence for both testate and intestate estates, including the forms and filing procedures for District Court.

What Changes the Inheritance Formula

A few events can alter who inherits even after intestate succession laws would otherwise apply:

Disclaimer of inheritance: An heir can disclaim (refuse) their inheritance, which causes that share to pass as if the disclaiming heir predeceased the decedent. People disclaim for tax planning reasons or to redirect the inheritance to a more needy family member.

Simultaneous death: If the decedent and an heir die in a common disaster and it cannot be determined who died first, Montana law requires that the heir survive the decedent by at least 120 hours to inherit. If the heir did not survive by that margin, they are treated as predeceasing the decedent.

Slayer rule: A person who intentionally and feloniously kills the decedent is barred from inheriting under Montana law, regardless of what a will or intestate succession rules would otherwise provide.

Advancement of inheritance: Montana recognizes that gifts given during the decedent's lifetime may count against an heir's intestate share if the decedent intended the gift as an advance on the inheritance and that intent was documented in writing.

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