The state laws that determine who inherits property when there’s no will, called intestate succession laws, aren’t always easy to decipher. For one thing, they refer to groups of people such as the deceased person’s “children” and “issue.” You may think you know just what "children" means, but it's not always obvious. Here is a guide to some of the trickier terms.
(If you're the executor, see What Does The Executor Do When There's No Will?
To qualify as a surviving spouse, the survivor must have been legally married to the deceased person at the time of death. Usually, it's clear who is and isn't married. But in some situations, there can be questions.
Legal separation or pending divorce. If the couple separated before one spouse died, or if one of them began divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is a surviving spouse for purposes of inheritance. Usually, a couple is considered married until a final divorce decree is issued by the court.
Common-law marriage. In a few states, a man and a woman who never went through a marriage ceremony can be considered legally married under certain circumstances. Generally, to create a common-law marriage, the couple must live together, intend to be married, and present themselves to the world as married. If someone may claim inheritance rights as a common-law spouse, check your state law to see whether your state recognizes common-law marriage and, if so, under what circumstances.
Same-sex marriage. In a state that allows same-sex marriage, a surviving spouse should not have a problem inheriting under state intestacy laws. And in states that offer civil unions or registered domestic partnerships, partners usually have the same inheritance rights as spouses. But if one spouse dies in a state that doesn’t recognize same-sex relationships, the courts will have to decide the issue.
The simple term "children" can mean different things under different laws. Many state statutes also use the term “issue,” which means direct descendants including children, grandchildren, and so on.
Adopted children. In all states, in the absence of a will or other estate plan, legally adopted children inherit from their adoptive parents just as biological children do.
Stepchildren. Most states do not include stepchildren (children of the spouse of the deceased person who were not adopted by the deceased person) in their definition of children for purposes of inheritance. In a few states, however, it may depend on the circumstances of the relationship.
Foster children. Foster children do not normally inherit as "children" of the foster parents.
Children adopted by an unrelated adult or family. In most states, placing a child for adoption severs the legal tie between the child and the birth parents. The child can no longer inherit from the birth parents under intestate succession laws, and the parents can no longer inherit from the child.
Children adopted by a stepparent. A child who is adopted by a stepparent might still inherit from the biological parents; it depends on state law.
Children conceived before the parent's death. A child conceived before a parent's death but born after the death (sometimes referred to as a "posthumous" child) inherits under intestate succession laws just as do children born during the parent’s life.
Children conceived after the parent's death. Reproductive technology, through the use of frozen sperm or embryos, has made it possible for children to be born years after the father’s death. This previously impossible situation greatly complicates inheritance, because by the time the new child arrives, the deceased father’s property will have been distributed. States are changing their laws to deal with this new possibility. Some now consider posthumously conceived children the father’s children, for purposes of intestate succession, if the father signed a statement consenting to the use of his sperm or embryos and the child is born within a certain time after the father’s death.
Children born outside marriage. A child born to unmarried parents always inherits from his or her birth mother, unless an unrelated family adopts the child. If the parents were never married, usually the child must show some kind of proof to inherit from the father.
For more on this, see our article on defining children in a will.
If an intestate succession law includes the deceased person's "sisters and brothers" or "siblings" as heirs, this group generally includes half-siblings. It may even include half-siblings who were adopted out of the family.
If you’re handling an estate where there’s no valid will, you’ll find yourself turning to state law again and again—in essence, the state steps in and writes a will for the deceased person, using its best guesses about what the person would have wanted. When it comes to interpreting these statutes and explaining the law to confused or anxious family members, the advice of an experienced probate lawyer can be very helpful.