Intestate Succession Rules

When an individual dies without a valid will, their estate must still be distributed. Intestate succession rules provide the legal blueprint for this process, ensuring property passes to family members according to state statute. For bar exam candidates, this area is not merely academic—it represents a core component of trusts and estates law that frequently appears on multiple-choice and essay questions, requiring precise application of hierarchical rules to complex family trees.

The Statutory Framework of Intestacy

Intestate succession is governed entirely by state law, which means the specific rules can vary. However, all jurisdictions share the same foundational principle: the law imposes a default distribution plan to promote orderly administration and reflect presumed familial intent. These intestacy statutes create a rigid, formulaic order of priority based solely on blood and marital relationships. The Uniform Probate Code (UPC) offers a influential model that many states have adopted, in whole or part, providing useful baseline rules for study. A critical first step in any analysis is to identify the decedent's probate estate—assets that pass under these rules, excluding joint tenancy property, life insurance proceeds with named beneficiaries, and retirement accounts. On the bar exam, a common trap is to incorrectly include non-probate assets in the intestate estate.

The Surviving Spouse's Share and Its Nuances

The surviving spouse's entitlement is primary but not absolute; its size depends entirely on which other surviving relatives exist. Under typical statutes and the UPC:

• If the decedent leaves a spouse but no descendants (children, grandchildren) or parents, the spouse inherits the entire estate.
• If the decedent leaves a spouse and descendants who are also the descendants of that spouse, the spouse often receives a substantial statutory share (e.g., the first $300,000 plus half the balance under the UPC), with the remainder going to the descendants.
• If any of the decedent's descendants are not also descendants of the surviving spouse (e.g., children from a prior relationship), the spouse's share is generally smaller (e.g., half of the intestate estate under the UPC).

You must pay close attention to whether your jurisdiction is a community property state, as this fundamentally alters the analysis. In community property states, the spouse typically retains their half of the community property automatically; intestate succession rules only govern the decedent's half and any separate property.

Descendants: The Per Stirpes vs. Per Capita Divide

When property passes to descendants, the method of distribution is crucial. Most states default to a per stirpes (by roots or by representation) scheme. This method follows each line of descent: the estate is divided at the first generation with living members; if a member of that generation has predeceased the decedent, that person's share passes down to their own descendants. For example, if a decedent had two children, A and B, and A predeceased leaving two children, while B is still living, the estate is divided into two shares at the child level. B gets one half. A's half is divided equally among A's two children.

In contrast, a per capita at each generation distribution (favored by the UPC) pools the shares at each generational level. Using the same example, if both A and B predeceased, leaving two and one child respectively, the three grandchildren share equally. The bar exam often tests this distinction with hypotheticals involving multiple predeceased children. The key is to locate the "generational divide"—per stirpes divides at the level of the deceased child, while per capita divides among all living individuals at the nearest generation with survivors.

Ascendants, Collaterals, and the Order of Succession

If the decedent leaves no surviving spouse or descendants, the statute looks to other relatives in a strict order of priority, typically:

1. Parents (equally, or to the surviving parent).
2. Siblings and their descendants (per stirpes or per capita).
3. Grandparents, then aunts, uncles, and their descendants.

This sequence is exhaustive. You must work through each tier completely before moving to the next. A frequent exam pitfall is jumping to siblings when a parent is still alive, or incorrectly excluding half-blood relatives. Modern statutes generally treat half-siblings the same as whole siblings. Furthermore, adopted children are treated as natural children of their adoptive parents, severing ties with biological parents for intestacy purposes. Non-marital children are heirs of their mother and their father if paternity is established.

Escheat: The State as Heir of Last Resort

Escheat occurs only when the decedent leaves no surviving spouse and no qualifying relative within the degrees of kinship specified by statute. The entire intestate estate then reverts to the state. This is a true last resort; the state will not intercede if there is any traceable heir, no matter how distant. In practice, thorough genealogical research is conducted before escheat is declared. On exams, escheat is often the correct answer for "lonely heir" scenarios, but be wary of questions that include a very distant relative like a second cousin once removed, as some statutes may include them within the covered class.

Common Pitfalls

1. Misapplying Distribution Methods: Confusing per stirpes with per capita is the most common error. Always diagram the family tree. Remember: per stirpes follows branches, even if uneven; per capita at each generation equalizes shares within the same living generation.
2. Overlooking the Spouse's Variable Share: Automatically giving the spouse everything if there are children is a mistake. The spouse's share is highly conditional on whose children they are. Always check if descendants are from the current marriage or a prior relationship.
3. Prematurely Invoking Escheat: Do not let property escheat to the state if there is any surviving relative in the statutory order of succession. Work methodically through parents, then siblings and their issue, before concluding no heir exists.
4. Forgetting Modern Family Law Doctrines: Failing to account for adoption (which severs biological ties for intestacy) or the rights of non-marital children can lead to an incorrect heir designation. Assume equality unless the facts indicate otherwise.

Summary

• Intestate succession statutes are default rules that distribute a decedent's probate estate to surviving relatives in a strict, hierarchical order when no valid will exists.
• The surviving spouse's share is not fixed; it increases or decreases based on the presence and identity of other heirs, such as descendants or parents.
• Distribution to descendants typically follows a per stirpes approach, dividing shares by family branches, though the UPC's per capita at each generation method is growing in adoption and requires careful generational analysis.
• If no spouse or descendants survive, the estate passes to ascendants (parents), then collaterals (siblings and their issue), in a defined sequence.
• Only when the decedent leaves no qualifying relative under the statute does the property escheat to the state.
• For bar exam success, systematically apply the statutory order, diagram family trees for descendant distributions, and always verify the spouse's share against the exact mix of surviving heirs.