An intestate heir is a person who is legally entitled to inherit from a deceased person’s estate when that person died without a valid will. When someone dies intestate — meaning without a will — state law determines who receives their assets through a set of rules called intestacy laws. The people entitled to inherit under these laws are called intestate heirs or heirs at law.
Understanding who qualifies as an intestate heir and how intestacy laws determine the order of inheritance can help families understand what happens to an estate when no will exists and why having a will is so important.
How intestate heirs are determined
Each state has its own intestacy laws that establish a priority order for inheritance when someone dies without a will. While the specific rules vary by state intestacy laws generally follow a hierarchy that prioritizes close family members over more distant relatives.
The typical order of priority under most state intestacy laws is as follows:
Surviving spouse In most states the surviving spouse is the first in line to inherit. The amount the surviving spouse receives depends on whether the deceased had children and whether those children are also the surviving spouse’s children.
In many states if the deceased had no children the surviving spouse inherits the entire estate. If the deceased had children who are also the surviving spouse’s children the surviving spouse may inherit the entire estate or share it with the children depending on state law. If the deceased had children from a prior relationship the surviving spouse typically shares the estate with those children.
Children Children of the deceased are typically the second priority after the surviving spouse. If there is no surviving spouse the children generally inherit the entire estate in equal shares.
Grandchildren If a child of the deceased has already died their share typically passes to their own children — the deceased’s grandchildren — through a legal concept called per stirpes distribution.
Parents If the deceased had no surviving spouse or children the estate typically passes to the deceased’s parents.
Siblings If both parents have also died the estate typically passes to the deceased’s siblings in equal shares.
More distant relatives If no closer relatives survive the estate may pass to more distant relatives such as nieces and nephews, aunts and uncles, or cousins depending on state law.
The state If no living relatives can be identified the estate escheats — meaning it passes to the state government.
Who is not an intestate heir
Intestacy laws are based on legal family relationships and do not account for personal relationships or circumstances. People who are typically not considered intestate heirs regardless of their relationship with the deceased include:
- Unmarried partners and significant others — regardless of the length or nature of the relationship an unmarried partner has no inheritance rights under intestacy laws in most states
- Stepchildren — stepchildren generally have no inheritance rights under intestacy laws unless they were legally adopted by the deceased
- Friends — even close friends who were like family have no inheritance rights under intestacy laws
- Charities and organizations — intestacy laws make no provision for charitable giving
This is one of the most compelling reasons to create a will — intestacy laws cannot account for the unique personal relationships and wishes of each individual.
Half relatives
Most states treat half relatives — people who share only one biological parent with the deceased — the same as full relatives for intestacy purposes. For example a half-sibling would generally inherit the same share as a full sibling under intestacy laws.
Adopted children
Legally adopted children are generally treated the same as biological children under intestacy laws. An adopted child has full inheritance rights from their adoptive parents and family and generally loses inheritance rights from their biological parents once the adoption is finalized.
Children born outside of marriage
Children born outside of marriage — sometimes called nonmarital children — generally have the same inheritance rights as children born within marriage in most states. However the rules for establishing paternity and the child’s relationship to the father vary by state.
How intestate shares are calculated
The specific share each intestate heir receives depends on state law and the composition of the surviving family. A few examples illustrate how this works:
- Deceased leaves a spouse and two children — all three are the surviving spouse’s children — in many states the spouse inherits the entire estate. In others the spouse and children share.
- Deceased leaves two children but no spouse — the two children split the estate equally.
- Deceased leaves a spouse and children from a prior relationship — the spouse and children from the prior relationship typically share the estate with the spouse receiving a portion and the children dividing the remainder.
- Deceased leaves no spouse no children and no parents — the estate passes to siblings in equal shares.
Disclaiming an inheritance
An intestate heir does not have to accept their inheritance. An heir can disclaim — formally refuse — their inheritance for any reason including to allow the assets to pass to the next heir in line or to avoid estate or income tax consequences.
A disclaimer must generally be made in writing within a specific time period — typically nine months of the death — and must meet specific legal requirements to be valid. Consulting with an attorney before disclaiming an inheritance is advisable.
Why intestacy laws often produce unintended results
Intestacy laws apply a one-size-fits-all formula that cannot account for individual circumstances and wishes. Common situations where intestacy laws produce unintended results include:
- A long term unmarried partner receives nothing while distant relatives the deceased had no contact with inherit the estate
- Assets pass to an estranged relative rather than a close friend who was like family
- A blended family situation results in a distribution that does not reflect the deceased’s wishes
- A child with a disability receives an inheritance directly rather than through a special needs trust disqualifying them from government benefits
- A specific item of sentimental value passes to the wrong person
Creating a will is the only way to ensure that your assets pass according to your actual wishes rather than the default rules of your state’s intestacy laws.
Key terms to know
- Intestate heir — a person legally entitled to inherit from a deceased person who died without a will
- Intestate — dying without a valid will
- Intestacy laws — state laws that determine how assets are distributed when someone dies without a will
- Per stirpes — a method of distribution in which a deceased heir’s share passes to their descendants
- Escheat — the process by which an estate passes to the state when no living heirs can be found
- Disclaimer — a formal refusal of an inheritance by an heir
- Half relative — a person who shares only one biological parent with the deceased
- Nonmarital child — a child born outside of marriage
Sources
- American Bar Association — Public Resources
- USA.gov — Estate Planning
- National Institute on Aging — Getting Your Affairs in Order
This article is for general informational purposes only and does not constitute legal advice. Intestacy laws vary significantly by state. Consult a licensed attorney for guidance specific to your situation.