Intestate Succession: How Estates Are Distributed Without a Will

When There Is No Will: The State Becomes the Estate Planner

An estimated 55–60% of Americans die without a valid will — so the applicable state's intestate succession statute becomes the governing document. That's the legislature's default estate plan, and it rarely matches what the decedent would have chosen.

Under UPC §2-102, a surviving spouse with non-joint descendants takes the first $300,000 plus 75% of the remainder. New York (EPTL §4-1.1) hands the spouse just $50,000 plus half. The nuances for blended families, non-traditional relationships, and multi-state property are where competent probate practice gets tested.

Because intestate succession is governed entirely by state law and varies significantly across jurisdictions, the specific rules for who inherits—and in what proportions—depend on the applicable state statute. Intestate succession statutes generally determine who inherits when there is no will, or when a will fails to dispose of all estate assets (partial intestacy).

Cornell Law School's Legal Information Institute provides accessible summaries of intestacy law and the underlying constitutional and common-law principles. The National Conference of State Legislatures tracks legislative changes to succession statutes across all 50 states—a useful resource for attorneys who need to monitor evolving law.

This article covers the framework created by the Uniform Probate Code (UPC) for intestate succession, the significant variations in community property states, the critical distinction between per stirpes and per capita distribution, and special categories of heirs that require careful analysis in complex family situations. For related topics, see our guides on spousal elective share rights and community property vs. common law marital property.

The UPC Framework: A Baseline for Modern Intestate Succession

The Uniform Probate Code's intestate succession provisions (Article II, Part 1) reflect decades of policy debate about how default distribution rules should work in a society with high rates of divorce, remarriage, and non-marital cohabitation. Under the UPC framework (adopted in some form by approximately 18 states), the surviving spouse generally receives a priority share that varies based on the composition of the decedent's surviving family. States that have not adopted the UPC may follow substantially different distribution rules.

Under the UPC, if the decedent leaves no surviving descendants and no surviving parents, the entire estate generally passes to the surviving spouse. If the decedent's surviving descendants are also the surviving spouse's descendants (a traditional nuclear family), the surviving spouse generally takes the entire estate under the UPC—a departure from the older common law approach that gave children a share.

If the decedent has surviving descendants who are not the surviving spouse's descendants (children from a prior relationship), the surviving spouse takes the first $300,000 (adjusted for cost of living) plus 75% of the remainder, with the balance to the decedent's descendants. This provision reflects a legislative judgment that children from prior relationships have a stronger claim against their biological parent's estate than against a stepparent's assets.

States that have not adopted the UPC follow their own formulas, which can vary significantly from the UPC defaults. New York, for example, gives the surviving spouse $50,000 plus half the remainder if there are children, with children taking the other half.

Florida gives the surviving spouse the entire estate if all of the decedent's descendants are also the spouse's descendants—similar to the UPC—but if there are non-joint descendants, the surviving spouse takes only half. These variations make jurisdiction-specific knowledge essential for accurate client counseling.

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Per Stirpes vs. Per Capita: Distribution Among Descendants

When the decedent's estate passes to descendants, the method of distribution among those descendants determines who gets what when some descendants have predeceased the decedent leaving their own children. There are three main distribution methods: strict per stirpes, per capita at each generation (the UPC approach), and per capita with representation. These methods produce identical results when all children survive the decedent but diverge sharply in more complex family trees.

Under strict per stirpes (sometimes called English per stirpes), the estate is divided into as many equal shares as there are children of the decedent—whether living or having left surviving descendants. If one child predeceased the decedent leaving two grandchildren, those grandchildren together take their parent's share. The division happens at the first generation, regardless of whether any member of that generation survives.

Under per capita at each generation (the UPC default under §2-106), the estate is divided at the first generation in which living takers exist. Shares of deceased members of that generation drop down and are combined with shares of any other deceased members of that generation, then redistributed equally among their descendants.

This approach produces equal shares among all members of the same generation—all grandchildren, for example—regardless of which branch of the family they come from. Many clients and beneficiaries find the per capita approach more intuitive and equitable. The choice of method is significant in blended-family situations and should be addressed expressly in any will or trust rather than left to the applicable intestacy default.

Special Heir Categories: Adoption, Half-Blood, and Posthumous Heirs

Intestate succession statutes must address family relationships that do not fit the traditional nuclear family model, and the rules for these non-standard categories vary significantly across states.

Adopted children are treated as the children of their adoptive parents for all inheritance purposes under virtually all modern state statutes and the UPC. An adopted child inherits from and through their adoptive parents and their adoptive parents' families just as a biological child would.

The more complex question is whether an adopted child retains inheritance rights from or through their biological parents after adoption. The UPC and most states terminate these biological inheritance rights upon adoption, with a narrow exception for stepparent adoptions—where a child adopted by a stepparent typically retains the right to inherit from both the biological parent and the adoptive stepparent.

Half-blood relatives (siblings who share only one parent with the decedent) are treated equally with full-blood relatives under the UPC and in most states. A minority of states apply the half-blood rule, under which half-blood collaterals inherit half the share of full-blood collaterals.

Virginia and several Southern states have historically applied the half-blood rule, though the trend is toward abolition. Posthumous heirs—children conceived but not yet born at the decedent's death—are treated as living at death under virtually all state statutes if they survive birth. Modern reproductive technology has raised new questions about the inheritance rights of children conceived after death using frozen genetic material; a few states have enacted statutes addressing this situation, but most have not.

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Community Property States: A Fundamentally Different Starting Point

The nine community property states are:

• Arizona
• California
• Idaho
• Louisiana
• Nevada
• New Mexico
• Texas
• Washington
• Wisconsin

In these states, the intestate succession analysis begins with a threshold question: was the property community or separate? Community property—assets acquired during marriage with marital labor or funds—is generally treated as owned equally by both spouses.

A surviving spouse generally already owns half of the community property outright; only the decedent’s half passes through the estate. The specific rules for characterizing and dividing community versus separate property vary among these states.

Under California's intestate succession rules, the surviving spouse inherits the decedent's half of the community property entirely (in addition to their own existing half). For the decedent's separate property, the surviving spouse's share depends on whether the decedent leaves one child, multiple children, or other relatives.

Texas follows a similar pattern for community property but applies somewhat different rules to separate property. These rules mean that intestate distribution in community property states is more favorable to the surviving spouse for community property but may leave the spouse with a smaller share of separate property—potentially generating conflict in estates with significant separate property.

For attorneys administering estates that span community and common-law states, characterizing assets as community or separate requires careful tracing — and you can't punt on this. See our detailed guide on community property vs. common law marital property and its effect on probate in our detailed guide for a full treatment of this issue. Our Florida Probate Calculator and Ohio Probate Calculator reflect the current intestate succession rules for those states — with county-level cost detail for high-volume jurisdictions like Broward County and Cuyahoga County.