Delaware
This statute can be found at 12-503 of the state code. The surviving spouse is entitled to the decedent’s entire estate if no child or parent is alive.
• If a parent (or heirs, i.e., siblings) is still alive and there are no children, then the surviving spouse receives the first $50,000 of the estate plus one-half of any balance and a life estate in all real estate (the spouse gets to use the property as long as he or she lives);
• If there are children who are also issue of the surviving spouse, then the spouse receives $50,000 plus one-half of the personal estate plus a life estate in all real property;
• If the children are not related to the surviving spouse, then the spouse is only entitled to one-half of the personal estate plus a life estate in all real property;
• If there is no surviving spouse (or the portion not going to the spouse), then the estate goes to the children;
• If there are no children, then to the decedent’s parents;
• If there are no parents, then to the siblings;
• If there are no siblings, then to the next of kin that survive through the grandparents; and finally,
• If none of the above, then the property passes to the state.
District of Columbia
This statute can be found at 19-302 of the code. The surviving spouse is entitled to the decedent’s entire estate if no child or parent is alive.
• If there are children, the surviving spouse receives one-third of the estate;
• If there are no children, but there are parents or siblings, then the surviving spouse receives one-half of the estate;
• After distribution to the surviving spouse, or if there is no spouse, the property not described above goes to the children;
• If there are no children, then to the parents;
• If there are no parents, then to the siblings;
• If there are no siblings, then to the grandparents and their heirs; and finally,
• If there are no relatives within the fifth degree, then the property passes to the District for the benefit of the poor.
Georgia
This statue can be found in Title 53. The law has been influenced by the U.P.C. As such, the surviving spouse is the sole heir if there are no children. However, where there are surviving children (or their heirs), the surviving spouse splits the estate equally with them, provided that the spouse receives at least one-third of the assets. Subject to these rights, children inherit equally.
• If there are no children, the parents split the estate;
• If there are no parents, then to the decedent’s siblings (or their heirs);
• If there are no siblings, then to the grandparents (or their heirs); and finally,
• If none of the above, then the estate goes to the county educational fund.
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Illinois
This statute can be found at 744-5/2-1 of the state code. The surviving spouse takes the entire estate if there are no children.
• If there are children, they share the entire estate;
• If there are no children, then to the parents, brothers and sisters equally. Descendents of deceased brothers and sisters take through their parents. If one parent is dead, the other parent receives two shares;
• If there are no parents or their heirs, then to the grandparents and their heirs;
• If there are no grandparents (or their heirs) to the great grandparents and their heirs; and finally,
• If none of the above, then the real property goes to the county that it is located; personal property within the state goes to the county of the decedent’s residence; and all other property goes to the state.
As the above statutes illustrate, state statutes vary considerably. In our increasingly mobile society this raises the issue of when one should draft a will. It is also interesting to note that many statutes take specific government funds into account when assets must go to the state because there are no eligible relatives under the statute. This also raises important issues for nonprofit charities, including churches. These and other issues will be discussed in future articles.
As always, this article is not designed to provide specific legal advice. Only a licensed attorney hired by the reader can do that. However, readers are encouraged to look at their individual state’s laws on intestate succession before deciding whether or not they need a will, and what the components of their will should be.
Last week we looked at the Uniform Probate Code (U.P.C.) to get a general idea of whether or not a will is necessary (Click here to read last week’s article). In short, if the state plans to distribute one’s assets in the same way as one would under a will, then drafting such a document is not necessary.
The U.P.C. has been adopted in sixteen states (Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, Mew Mexico, North Dakota, South Carolina, South Dakota, and Utah). The statute assumes that all decedents are married and starts with the premise that the surviving spouse takes all of the estate. If there are parents or children, then estates over a certain size are distributed equitably between the survivors. Where there is no spouse, the entire estate goes to the children. In the case of an unmarried person with no children, the entire estate goes to the decedent’s parents or their heirs (the decedent’s brothers and sisters and their children). An unmarried decedent without children or parents (or their heirs) has his or her estate divided between each set of grandparents or their heirs. Finally, the assets of a decedent without heirs under the code are given to the state.
As we discussed, the U.P.C. sets forth the state-of-the-art on intestate distribution of a person who dies without a will. The drafters incorporated their expertise to devise a uniform method of winding up one’s affairs that is generally acceptable to the public and creates expectations among one’s family. These factors are both useful in deciding whether or not to draft a will and provide some guidance if a will is deemed necessary.
The following is a summary of the statues in the states of Alabama, Arkansas, California, Connecticut, Delaware, the District of Columbia, Georgia, and Illinois. We will look at the remaining states and territories in the next two articles.
Alabama
This statute can be found at 43-8-1 of the state code. Although based on the 1974 U.P.C., it is slightly different. The surviving spouse is entitled to the entire estate if no parent or child is alive.
• If there are parents, but no children, the surviving spouse receives the first $100,000 plus one-half of the balance.
• If the are children from both spouses, then the surviving spouse receives the first $50,000 plus one-half of the balance.
• If the children are not from both spouses, then the surviving spouse only receives one-half of the estate.
That part of the estate not going to the surviving spouse passes as follows:
• To the children in equal shares;
• If there are no children, then to the parents in equal shares;
• If there are no parents or children, then to the deceased’s brothers and sisters (or their heirs);
• If there are no children, parents, or siblings, then one-half to each set of grandparents (or their heirs); and finally,
• If none of the above, then the property passes to the state.
Arkansas
This statute can be found at 28-9-201 of the state code. Notice the differences from the U.P.C. The children and their descendants of deceased children take the entire estate.
• If there are no children, then the estate goes to the surviving spouse, but if the decedent was married for less than three years, then the surviving spouse only takes half the estate, with the remaining half passing as if the spouse had not survived;
• If there are no children and no surviving spouse, then to the parents in equal shares;
• If there are no parents or children, then to brothers and sisters;
• If there are no parents, children, or brothers and sisters, then to the surviving grandparents or their heirs;
• If there are no parents, children, siblings, or cousins, then to surviving great-grandparents and their heirs;
• If none of the above, then the remainder of the estate goes to the spouse in cases where the marriage lasted for less than three years;
• If none of the above, then to the children of a pre-deceased spouse, assuming that the marriage was not ended by divorce; and finally,
• If none of the above, then the property passes to the county where the deceased resided at death.
California
This statute can be found in the Probate Code at 240. As a community property state, distribution is more complex. The surviving spouse takes all community property and all the separate property. However, if there are children, then the surviving spouse only takes one-third of the separate property. If there is only one child, then the surviving spouse takes one-half of the separate property.
• If there is no surviving spouse, then community property does not exist. Therefore, all property goes to the children;
• If there are no children, then to the parents;
• If there are no parents, then to the decedent’s siblings;
• If there are no parents, or siblings, then to the grandparents or their heirs;
• If there are no grandparents, then to the children of a pre-deceased spouse;
• If there are no such children, then to the parents of a predeceased spouse; and finally,
• If none of the above, then the property passes to the state.
Connecticut
This statute can be found at 45a-438 of the state code. The surviving spouse takes the entire estate if no child or parents survive. If there are no children, but the parents are alive, then the surviving spouse receives $100,000 plus three-quarters of the remainder. If there are children, and all are related to the surviving spouse, then $100,000 goes to the surviving spouse plus one-half of the remainder. If there are children that are not related to the surviving spouse, then the surviving spouse takes only one-half of the estate.
• If there is no surviving spouse, then the estate goes to the children. If there are no children, then to the decedent’s parents, assuming that the parents have not abandoned a deceased child;
• If there are no parents, then to the decedent’s siblings (or their heirs);
• If there are no siblings, then to next of kin, but not their heirs (meaning the relatives must be alive);
• If there are no next of kin, then to step children and their heirs; and finally,
• If none of the above, then the property passes to the state.
