Death Without a Will...Now What?
What happens when you die without a will? If a loved one has passed away without leaving a will, you will need to consult state law to determine who inherits the assets. Every state has individual laws regarding which of the closest relatives get the determined assets.
Dying Without a Will: Intestate Succession
The process that determines who gets what when there has been a death without a will is called intestate succession. Every state has individual intestate succession rules as to who is to be included.
Generally, surviving spouses or registered domestic partners rank first on this list, with adult children ranking second, and other family members ranking third.
Normally speaking, unmarried partners, friends, and charities are not included on this list. In the rare case where there is no surviving spouse, partner, children, or relatives, the state takes the assets.
Not only does every state have rules that determine who can inherit assets, every state also has rules as to who cannot inherit. This usually includes individuals who have behaved wrongfully towards the deceased person. For example, a parent who abandoned or refused to pay child support cannot inherit from that child.
Complicated Cases When Dying Without a Will
It is pretty easy to determine who is the surviving spouse or the surviving children involved, but some cases are more complicated than others. What happens if you were separated from your spouse when they died? Can foster children or stepchildren inherit? Researching your specific state’s intestate succession rules and regulations should answer any questions you have, but below are general guidelines for common complicated cases.
Complicated Cases With a Spouse
- Legal Separation or pending divorce: Normally a judge decides if the surviving member of the couple is considered a surviving spouse if the couple had separated or begun the divorce proceedings before one spouse died.
- Common-law marriage: Some states allow common-law marriages to be considered legally married. Check your individual state’s law to see whether your state recognizes common-law marriage, and what circumstances are required to do so.
- Same-sex marriage: If the couple was legally married and live in a state that allows same-sex marriage, there should be no problem. If one spouse died in a state that does not allow same-sex marriage, a judge will decide if the surviving member can be considered a surviving spouse.
Complicated Cases With Children
- Adopted children: Legally adopted children inherit from their adoptive parents just as biological children do. This is true for all states. The biological parents do not inherit from the child though, and likewise, the adopted child does not inherit from his/her biological parents.
- Stepchildren: Most states do not include stepchildren that are children of the spouse of the deceased person, but in a few states it is taken on a case by case basis.
- Foster children: In all states, foster children do not normally inherit.
- Children born after a parent’s death (aka posthumous child): A child conceived before a parent’s death, but born after the death of the parent inherits just like children born during the parent’s life.
- Children born outside marriage: A child born outside marriage always inherits from his or her birth mother, unless the child is adopted. Normally, the child must show some kind of proof of relation to inherit from the birth father.
It is important to understand that some assets are not passed down by a will. Such assets are:
- Life insurance
- Joint bank accounts and real estate
- Property held in a living trust
- Funds in an IRA, 401k, or retirement plan for which a beneficiary was declared
- Funds in a POD (Payable-On-Death) bank account
- Stocks held in a TOD (Transfer-On-Death) account
- Real estate or vehicles held in a TOD account
To determine who inherits these assets, you’ll need to locate the documents that declared the co-owner or beneficiary.
So the Court Decides?
In short, yes. When someone dies without a will, your state's intestate succession laws determine how the assets are divided. If proceeding through probate court is necessary, it is the court who determines how the assets are divided.