Intestate Distribution Scheme: Descent and Distribution Statutes

There are several ways that property is transferred when you die: intestacy, nonprobate instruments, and by will.

The intestate distribution scheme is how a decedent's property is passed to heirs according to state law, when the decedent had property that was not transferred by nonprobate means or by will, or some or all of the will was invalid, or part of the will fails.

The intestate distribution scheme depends on state statutory and judicial law, which varies greatly among jurisdictions. What property falls to intestacy is also determined by the jurisdiction, especially in regard to ambiguities in the will, failed gifts, and other defects in the will or even in nonprobate instruments.

Intestacy is the Norm

Most people fail to pass property either by nonprobate means or through a will; hence, the property is distributed according to the state's descent and distribution law. Property also falls to intestacy if it was not included in a valid will or the will suffered other defects, such as a failed gift or ambiguities.

Heirs, Heirs Apparent, Legatees, and Expectancies

The people who receive the property of the decedent under intestacy are referred to as heirs, but before the death of the property owner, they are only heirs apparent since an heir must survive the decedent, and who remains alive to receive the property can only be known after the property owner dies. If the property is transferred by will, then the beneficiaries are also referred to as legatees, but not as heirs.

An expectancy of an heir apparent is the expectation to receive property from the property owner after her death. Most children, for instance, expect to receive their parents' property after the death of both parents.

An expectancy is not a property interest because the heir apparent must survive the property owner, or the owner could devise the property to another through a will or transfer the property inter vivos.

Because an expectancy is not a property interest, it is not transferable. However, if the heir apparent agrees to transfer the property for an adequate present consideration, then most courts will enforce the agreement.

Typical Intestate Distribution

if a decedent died intestate, then the decedent's property is distributed according to the relevant state's descent and distribution statute. for personal property, the relevant state is the decedent's domicile at the time of death; for real property, the state in which the property is located.

Although there is a large variation in states' intestacy laws, they all have common elements, most notably, who inherits and what percentage. Another common feature is that the descent and distribution is tiered, so that if there any takers at any 1 tier below the spouse, everyone in that tier takes equally all of the remaining property and no one in lower tiers takes anything.

The surviving spouse may take everything, if the decedent had no surviving issue or the issue are also issue of the surviving spouse and the decedent had no surviving parent. Otherwise, the surviving spouse takes most or all the property depending on whom else is closely related to the decedent who is still alive.

All property not passing to the spouse passes to the following in equal proportions:

  1. Issue (all descendents)
  2. Parents
  3. Issue of parents
  4. Grandparents
  5. Issue of grandparents

If there is no one in the groups listed above, then the property passes to the next-of-kin by the degree of relationship. However, there are limits to the next-of-kin relationship, which is defined by statute, because, if you consider more remote ancestors, we are all, at some degree, related. If there are no heirs, then all of the property escheats to the state.

The Uniform Probate Code (UPC §§2-102 to 2-105) takes a similar approach. However, more of the property goes to the spouse than under most state statutes, and there is no distribution to the next-of-kin under the UPC, but, instead, escheats to the state. The distribution to grandparents or issue of grandparents also differs slightly from most statutes.

If the decedent and surviving spouse live in a community property state, then the community property is divided in half, with the decedent's estate receiving half and the surviving spouse, half. If the decedent died testate, then his half of the community property is distributed according to his will. However, if he died intestate, then his half of the property is distributed according to the state's descent and distribution statute. In most cases of intestacy, all of the property goes to the surviving spouse.

Same-Sex Marriage, Civil Unions, and Domestic Partnerships

A partner in a gay or lesbian relationship is not related by blood and only a few states currently recognize marriage between 2 partners of the same sex:

Domestic partners are also included in the intestate descent and distribution scheme in California, District of Columbia, Hawaii, Nevada, New Jersey, Oregon, and Washington.

The modern trend in law is to recognize gay and lesbian relationships, and, no doubt, all states and jurisdictions will eventually treat domestic partnerships as marriages.

What evidence should be presented that would cause a domestic partner to be treated as a surviving spouse under intestacy laws in those jurisdictions that allow it? Generally, if domestic partners shared a common household in a marriage-like relationship, then this is a good indication that they were domestic partners. However, to remove any ambiguity, some have suggested using a registry where one could simply list his or her partner in the registry.

However, in 1996, the Defense of Marriage Act was passed, which consists of 2 parts:

  1. 1 U.S.C. §7: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife."
  2. Title 28, Chapter 115, §1738C: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

Consequently, same-sex partners cannot enjoy the same Social Security, tax, and welfare benefits that traditionally married members of the opposite sex enjoy nor do states that do not recognize a marriage between members of the same sex need to recognize such a a marriage under the Full Faith and Credit Clause of the United States Constitution.

No doubt, domestic partners will eventually have all of the same rights and privileges that traditionally married couples enjoy, but, in the meantime, through the use of wills and will substitutes, such as inter vivos trusts, a domestic partner can pass property to his or her partner regardless of the jurisdiction.