Definition
Intestate succession is the legal process by which a deceased person's property is distributed according to state statutes when they die without a valid will. A person who dies in this situation is said to die "intestate." Because there is no will to express the decedent's wishes, the state's intestacy laws supply a default plan that determines who the heirs are and what share each receives.
Legal Meaning
When someone dies without a valid last will and testament, the law cannot ask the decedent what they wanted. Instead, each state has enacted intestate succession statutes that act as a substitute will the legislature has written for everyone who fails to make one. These statutes identify the decedent's heirs and dictate how the estate is divided, based primarily on family relationships.
Intestacy can be total or partial. Total intestacy occurs when there is no will at all. Partial intestacy occurs when a will exists but fails to dispose of all of the decedent's property—for example, if it leaves out an asset acquired after the will was signed. The portion not covered by the will passes under the intestacy statutes.
The estate still goes through probate, but because there is no named executor, the court appoints an administrator (a type of personal representative) to gather assets, pay debts and taxes, and distribute what remains to the heirs the statute identifies. Importantly, intestate succession governs only "probate" assets. Property that passes by beneficiary designation, joint ownership with right of survivorship, or a trust transfers under its own rules and is unaffected by intestacy. State variation is significant, especially between community property states and common-law property states.
Key Points
- Dying "intestate" means dying without a valid will
- Each state's intestacy statutes act as a default plan that decides who inherits
- Spouses and children typically inherit first, followed by parents, siblings, and more distant relatives
- Unmarried partners, friends, and stepchildren usually do not inherit under intestacy
- Community property states treat marital property differently from common-law property states
- The court appoints an administrator because no executor was named in a will
- Intestacy controls only probate assets, not assets with beneficiary designations, survivorship, or in trust
- If no qualifying heirs exist, property may "escheat" to the state as a last resort
Real-World Example
David dies suddenly without a will, leaving a wife and two adult children from a previous marriage. He assumed his wife would automatically receive everything. Under many states' intestacy laws, however, a surviving spouse shares the estate with the decedent's children when those children are not also the spouse's children. Depending on the state, his wife might receive only a portion—such as half or a fixed dollar amount plus a fraction—with the rest divided among his children.
The result may be very different from what David intended. His wife could be forced to sell the family home to pay the children their statutory shares. A simple will or trust would have let David direct exactly who received what, avoiding both the rigid statutory formula and the conflict it can create.
Typical Order of Intestate Heirs (General Pattern)
| Surviving Relatives | Who Typically Inherits | Notes |
|---|---|---|
| Spouse and shared children | Often the spouse receives all or most | Varies; some states split with children |
| Spouse and children from another relationship | Spouse and children share | Spouse's share is often reduced |
| Children, no spouse | Children inherit, usually equally | Grandchildren may take a deceased child's share |
| Spouse, no children | Spouse, sometimes shared with parents | Depends on state |
| No spouse or children | Parents, then siblings | Then nieces, nephews, and so on |
| No close relatives | More distant kin (grandparents, cousins) | Determined by degrees of kinship |
| No heirs at all | The state (escheat) | Last resort after a diligent search |
Special Situations Under Intestacy
Several recurring issues complicate intestate succession:
Adopted and Posthumous Children
Legally adopted children generally inherit the same as biological children. A child conceived before but born after a parent's death is often treated as an heir as well, subject to state rules.
Half-Blood Relatives
Some states treat half-siblings the same as full siblings, while others give them a reduced share. The treatment of half-blood relatives is a common point of state variation.
Community Property States
In community property states, property acquired during marriage is generally owned equally by both spouses. At death, the surviving spouse often already owns half, and intestacy governs how the decedent's half passes—frequently to the spouse, but sometimes shared with children.
Survival Requirements
Many states require an heir to survive the decedent by a set period, such as 120 hours, to inherit. This avoids complications when two people die close in time.
Related Terms
Don't Leave It to the State
A simple estate plan lets you decide who inherits instead of relying on default intestacy law
Explore Estate PlanningWhen You Need a Lawyer
Whether you are planning ahead or dealing with the death of a loved one who left no will, legal guidance helps. Consider consulting an attorney if you:
- Want to avoid intestacy by creating a will or trust
- Are administering the estate of someone who died without a will
- Have a blended family, an unmarried partner, or children with special needs
- Are unsure who qualifies as an heir under your state's statute
- Face a dispute among potential heirs over shares of the estate
- Own community property or property in more than one state
An estate attorney can either help you avoid intestacy entirely or guide you through the administration of an intestate estate. To understand the cost, see our guide on understanding legal fees, and read how to choose a lawyer.
Frequently Asked Questions
What does it mean to die intestate?
To die intestate means to die without a valid will. When that happens, you cannot choose who inherits your property. Instead, your state's intestate succession statutes set a fixed order of heirs, typically beginning with your spouse and children, and the probate court oversees distribution according to that formula.
Who inherits if there is no will?
State intestacy laws set the order, but most follow a similar pattern. A surviving spouse and children usually inherit first, often sharing the estate. If there is no spouse or children, the estate passes to parents, then siblings, then more distant relatives. The exact shares vary by state and by family circumstances such as children from a prior relationship.
What happens to property if someone dies with no heirs?
If a person dies intestate with no surviving spouse, descendants, or other relatives who qualify as heirs under state law, the property generally passes to the state through a process called escheat. Escheat is treated as a last resort and applies only after a diligent search for legal heirs has failed.
Do unmarried partners inherit under intestate succession?
In most states, an unmarried partner does not inherit under intestate succession because the statutes recognize only legal relationships such as marriage and blood or adoptive kinship. This is one of the biggest risks of dying without a will, because a long-term partner can be left with nothing unless they were named in a will, trust, or beneficiary designation.
Does intestate succession cover all of my property?
No. Intestate succession only governs probate assets that have no other means of transfer. Property with a beneficiary designation, jointly owned property with rights of survivorship, and assets held in a trust pass outside of intestacy according to their own rules, regardless of whether you had a will.