Intestacy is the legal term for what happens when someone dies without a valid will, and it comes with more assumptions than most families realize. Many of these assumptions feel like common sense, drawn from what neighbors or relatives have said over the years, but state intestacy law does not always work the way people expect. Here are five common assumptions about intestacy that are not true.
1. “Everything Automatically Goes to My Spouse”
Many people assume that if they die without a will, everything automatically passes to their spouse. In reality, most states divide an estate between a surviving spouse and children if there are any, rather than giving the spouse everything outright. The exact split depends on state law and whether the children are also the surviving spouse’s children or from an earlier relationship, which can significantly change how much the surviving spouse actually receives compared to what the couple may have assumed. In some states, a surviving spouse with children from a prior relationship of the deceased may end up with only a fraction of the estate.
2. “The State Takes Everything”
Another common assumption is that dying without a will means the state takes everything. In practice, the state only inherits an estate in the rare case where no eligible relatives can be found at all, sometimes called escheat. Intestacy law generally works through a specific order of relatives first, spouse and children, then parents, then siblings, then more distant relatives, before the state is ever involved, and courts typically make a genuine effort to locate distant relatives before an estate ever reaches that point.
3. “My Partner Will Inherit Even Without a Will”
Some people assume an unmarried partner will inherit under intestacy the same way a spouse would. This is generally not the case. Most state intestacy statutes do not recognize an unmarried partner as an heir at all, regardless of how long the relationship lasted or how intertwined the couple’s lives had become, which can leave a surviving partner with no legal claim to the estate even after decades together. Jointly titled assets may still pass to a surviving partner outside of intestacy, but individually titled assets generally do not, which often surprises partners who assumed shared finances meant shared inheritance rights.
4. “My Verbal Wishes Will Be Honored”
It is also a common assumption that verbal wishes, or a note expressing how someone wanted their property distributed, carry legal weight even without a formal will. Intestacy law does not consider verbal statements or informal notes. Without a properly executed will, state law controls the distribution entirely, regardless of what the deceased person may have said or written informally, even if family members are in complete agreement about what was intended.
5. “All My Children Inherit the Same Way”
A final common assumption is that all children inherit equally under intestacy no matter the circumstances. While intestacy law does generally treat children equally, complications arise with children from prior relationships, adopted children, or stepchildren, since state law defines who legally counts as a child differently than a family might assume, and blended families are often surprised by how these definitions apply. Stepchildren who were never legally adopted, for example, are often not considered children at all under intestacy law, regardless of how close the relationship was in practice.
Summary
Intestacy involves a specific legal order of inheritance that often does not match what people assume it will be. A spouse does not always inherit everything, the state rarely inherits at all, unmarried partners are generally excluded, verbal wishes carry no legal weight, and children from different relationships are not always treated the way a family expects. Understanding these assumptions in advance is one of the more practical reasons to have a will rather than relying on intestacy law by default, since a will allows a person to decide these questions directly instead of leaving them to a statutory formula.
How intestacy applies depends on the specific state and family situation involved. If there are questions about intestacy in general, the team at True Estate Planning is available to discuss the options.
The choice of a lawyer is an important decision and should not be based solely upon advertisements. Prior results do not guarantee a similar outcome. This post is for informational purposes only and does not constitute legal advice.
