New Hampshire Intestate Succession: Who Inherits When There Is No Will

When a New Hampshire resident dies without a valid will — or when a will does not fully dispose of all assets — the state's intestate succession law determines who inherits. The governing statute is RSA Chapter 561, which lays out a priority-based system: certain family members inherit before others, and the distribution depends on which family members are alive at the time of death.

This post explains the NH intestate hierarchy, what the surviving spouse receives, how children are treated, and what happens when there are no close relatives.

The Core Principle: Probate Assets Only

Intestate succession applies only to probate assets — property held solely in the decedent's name without a beneficiary designation or survivorship right. Non-probate assets pass outside of the succession rules entirely:

• Bank accounts with a Payable on Death (POD) beneficiary go directly to that beneficiary
• Real estate held in joint tenancy with right of survivorship passes to the surviving joint tenant
• Life insurance with a named beneficiary goes directly to that person
• IRAs, 401(k)s, and other retirement accounts with designated beneficiaries bypass intestate succession
• Property in a funded living trust is distributed according to trust terms

Intestate succession only governs the assets that are left over — those with no named beneficiary and no survivorship arrangement.

Surviving Spouse and Descendants: The Primary Scenario

Most estates involve a surviving spouse, children, or both. Here is how RSA 561 distributes assets in the common scenarios:

Surviving spouse with children who are all also the spouse's children

The surviving spouse inherits the entire estate. If all of the decedent's children are also the surviving spouse's children (no children from prior relationships), New Hampshire does not split the estate between the spouse and the children. The spouse takes everything.

This is a favorable rule for blended-free families and reflects the legislature's recognition that forcing the family home into a shared arrangement between a surviving spouse and adult children creates unnecessary conflict.

Surviving spouse with at least one child from a prior relationship

When the decedent has children who are not also the surviving spouse's children (stepchildren from the surviving spouse's perspective), the estate is split:

• Surviving spouse: receives one-half of the intestate estate
• Decedent's children: divide the remaining one-half equally among themselves (including any children who are also the surviving spouse's children)

This division applies regardless of whether the stepchildren have a close relationship with the surviving spouse.

Surviving spouse with no children

The surviving spouse inherits the entire estate.

Children but no surviving spouse

The estate is divided equally among the decedent's children. If a child predeceased the decedent but left children of their own (the decedent's grandchildren), those grandchildren step into their parent's share — this is called representation or per stirpes distribution.

No spouse and no children

The estate passes to the decedent's parents in equal shares. If only one parent survives, that parent inherits everything.

No spouse, no children, no parents

The estate passes to the decedent's siblings in equal shares, again with representation (the children of a deceased sibling step into their parent's share).

No spouse, no children, no parents, no siblings

The estate passes to the next closest relatives — grandparents, then aunts and uncles, then cousins — following a structured hierarchy that works outward through the family tree.

No qualifying heirs exist

If no qualifying relatives can be found, the estate "escheats" to the State of New Hampshire. This is rare in practice but legally possible.

The Surviving Spouse's Additional Rights

Beyond the share described above, the surviving spouse in New Hampshire has several additional statutory protections that function independently of intestate succession:

Homestead right (RSA 480:1): The surviving spouse has a homestead exemption of $120,000 in the primary residence, which protects the home from being forced into a sale to satisfy most creditor claims.

Right to remain in the home (RSA 560:1): The surviving spouse has the right to remain in and use the family home during the estate administration process, regardless of what the estate owes to creditors.

Personal property set-off (RSA 560:2): The surviving spouse is entitled to receive certain household furniture, appliances, and personal property from the estate up to a specified value, separate from the intestate share.

Vehicle exemption: Under RSA 261:17, a vehicle used for family purposes is treated as jointly held with right of survivorship between spouses, allowing the surviving spouse to transfer title without probate simply by presenting the existing title and a certified death certificate to the town or city clerk.

These rights exist in addition to the intestate share. A surviving spouse dealing with a solvent estate is generally well-protected under New Hampshire law.

The Right to Waive a Will (Elective Share)

If the decedent did leave a will that gives the surviving spouse less than they would receive under intestate succession, the surviving spouse is not without recourse. Under RSA 560:10, a surviving spouse can waive the provisions of the will and elect to take a statutory share of the estate instead.

This election must be made within a specific time period after the will is admitted to probate. The elective share amount depends on the statute and case-specific circumstances. If you are a surviving spouse who has been left an unfairly small portion of the estate under a will, consult a probate attorney promptly — the election deadline is real.

Adopted Children and Stepchildren

Under New Hampshire law, legally adopted children are treated identically to biological children for purposes of intestate succession. An adopted child inherits from and through their adoptive parents; they generally do not retain inheritance rights from their biological parents after adoption is finalized.

Stepchildren — children who were never legally adopted — do not inherit under intestate succession. If a decedent had a close relationship with a stepchild but never formally adopted them, that stepchild receives nothing under intestate law. The only way to provide for a stepchild is through a will.

Children Born Outside of Marriage

A child born outside of marriage has the same inheritance rights from the mother as any other child. The relationship to the mother is established by birth.

Inheritance from the father depends on whether paternity was legally established — through a voluntary acknowledgment, a paternity determination, or a court adjudication. If paternity was formally established during the father's lifetime, the child inherits from the father's estate under intestate succession just as any other child would.

Half-Relatives and Relatives of the Half-Blood

New Hampshire treats relatives of the half-blood (sharing one parent with the decedent but not both) the same as relatives of the full blood. A half-sibling inherits equally with a full sibling under intestate succession.

Opening an Intestate Estate in New Hampshire

If the decedent died without a will (intestate), the process for settling the estate follows the same probate court procedures as a testate (with a will) estate, with some differences:

1. A petition for administration is filed through NH e-Court (rather than a petition for probate of a will)
2. The court appoints an administrator rather than an executor — typically the surviving spouse, then adult children in priority order under RSA 553:4
3. The administrator manages the estate according to the RSA 561 distribution rules rather than will instructions
4. The Waiver of Administration under RSA 553:32 is available for qualifying intestate estates, just as for estates with a will

The court filing fees are the same regardless of whether a will exists: $150, $205, or $305 based on estate value, plus the $55 publication fee for estates over $10,000.

If you are settling a New Hampshire estate without a will and want to understand the full process — from opening the estate and filing the creditor notice through distributing assets under the intestate rules — see our complete guide at /us/new-hampshire/estate-settlement/.

Common Mistakes in Intestate Estates

Assuming everything goes to the surviving spouse when there are children from prior relationships. As described above, when a decedent has children from a prior relationship, the estate is split 50/50 between the spouse and the children. Many surviving spouses are surprised to learn they do not receive the entire estate.

Distributing assets before the six-month creditor period expires. Even in intestate estates, the administrator must wait through the creditor claim period before distributing assets to heirs. Early distribution can create personal liability.

Ignoring non-probate assets. Intestate succession only governs what goes through the court. Many people confuse the intestate rules with what happens to all assets at death. Beneficiary designations and survivorship rights operate completely independently.

Failing to open a probate estate when one is required. If the decedent owned real estate solely in their name, a probate estate must be opened in New Hampshire regardless of the estate's size. There is no threshold below which real estate bypasses probate automatically (absent a TOD deed or joint tenancy).

New Hampshire's intestate succession rules are relatively clear and favor the surviving spouse in most common family situations. The complexity arises when families are blended, when paternity is disputed, or when the decedent owned assets in multiple states — in which case professional guidance is strongly recommended.

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