What happens if you don’t have a will when you die? Or any other estate documents, like a trust? As we discussed in a prior blog, the will is just one of four different ways that assets pass at death. The provisions of the will only affect assets that the decedent owns in his/her own name. Again, as covered in a prior blog, when the first of the couple dies, the will may not affect any assets because the assets are all a combination of beneficiary designation assets and jointly held with a right of survivorship. But the will becomes extremely important when the second of the couple dies.
When a person dies without a will, he/she is deemed to have died “intestate.” Each state has specific laws regarding how to divide the assets of a person who dies intestate. The division is based on percentages, and not specifically related to individual assets.
Without getting into too much detail, the intestate division works this way:
- If the decedent is married and has no living descendants, then the surviving spouse receives all the assets.
- If the decedent is married and has one child, then the surviving spouse receives one-half of the assets and the child receives the other one-half of the assets.
- If the decedent is married and has two or more children, then the surviving spouse receives one-third of the assets and the surviving children divide the remaining two-thirds of the assets equally among them. For example, if there are two children, then they will each receive a one-third portion of all the assets (each getting one-half of the children’s allocated two-thirds. If there are three children, then each will receive a two-ninths portion of all the assets (each getting one-third of the children’s allocated two-thirds).
- If the decedent is not married, then the assets are divided equally among the decedent’s children.
- If a child dies before the decedent, but is survived by his/her own children, then those children divide what their parent would have received. For example, if a child who dies before the parent has himself/herself two children, then the two children each get half of what their parent would have received from their deceased grandparent. Basically, grandchildren are not disinherited because their parent dies before their grandparents.
Adopted children are considered a child (or grandchild) of the deceased and can inherit from him/her. But the adopted child cannot inherit under the intestate rules from his/her birth parent. When the adoption makes the child part of the adopting family, it also severs the inheritance connection from the birth family.
A child born out of wedlock is deemed to be the child of the mother. The child will be the child of the father if paternity is established by a court or by the father’s declaration and actions.
Children that are of half-blood inherit just as if they were full-blood. Additionally, children conceived before the decedent’s death, but born after the decedent’s death, inherit as if they had been born before the decedent’s death.
If you have any questions or comments about this topic, please do not hesitate to contact the estate planning lawyers at Martin Heller Potempa & Sheppard, PLLC.