Intestacy

Intestacy is the legal status of a person's estate upon their death without a valid will, or partial intestacy where a will fails to dispose of certain assets, whereby those assets are distributed according to predefined statutory rules of intestate succession rather than the decedent's personal wishes.^[1] These rules, which vary by jurisdiction, aim to ensure an orderly transfer of property to surviving relatives, typically prioritizing spouses, children, and other close kin while excluding non-relatives unless specified otherwise.^[2] In common law systems, intestacy applies only to probate assets—those passing through the estate—excluding non-probate items like joint tenancy property, life insurance with named beneficiaries, or trusts.^[3] In the United States, every state has its own intestacy statutes, but common patterns emerge across jurisdictions.^[4] The surviving spouse and children usually receive the bulk of the estate, with shares depending on family structure: for example, a spouse might inherit everything if there are no children, or split the estate equally with children if present.^[2] Adopted children are treated as biological ones, while stepchildren and unmarried partners generally have no automatic rights unless adopted or via separate legal claims.^[3] If no heirs are found, the estate escheats to the state government.^[4] These laws reflect a default framework intended to approximate typical family expectations, though they can lead to unintended outcomes in blended or non-traditional families.^[2] In England and Wales, intestacy is governed by the Administration of Estates Act 1925, as amended, applying to individuals domiciled there or with immovable property in the jurisdiction.^[5] A surviving spouse or civil partner receives personal chattels (such as household items) and a statutory legacy of £322,000, subject to periodic review by the Lord Chancellor; if children exist, the spouse also gets half the remaining estate absolutely, with the other half held in trust for the children on the spouse's death.^[6] Without a spouse or children, the estate passes equally to parents, then full siblings (or their descendants), grandparents, and further relatives in descending order of kinship; half-blood relatives inherit if no full-blood relatives in that class survive, sharing equally.^[7] Cohabitants have no automatic entitlement but can seek provision under the Inheritance (Provision for Family and Dependants) Act 1975, with ongoing reforms proposing rights for long-term partners.^[5] If no eligible relatives survive, the estate becomes bona vacantia and passes to the Crown, Duchy of Lancaster, or Duchy of Cornwall.^[5] Intestacy laws in other common law jurisdictions, such as Canada, Australia, and India, follow similar hierarchical principles but incorporate local variations, including cultural influences on heir priorities.^[3] The process typically involves probate court administration to identify heirs, value assets, pay debts and taxes, and distribute the remainder, often requiring a personal representative (administrator) appointed by the court.^[8] While these statutes provide a safety net, they underscore the importance of estate planning to avoid intestacy, as outcomes may not align with individual intentions, particularly regarding non-family beneficiaries or unequal distributions among heirs.^[2]

Definition and Overview

Definition of Intestacy

Intestacy refers to the legal condition arising when a person dies without leaving a valid will, resulting in the distribution of their estate according to predefined statutory rules rather than the deceased's personal preferences.^[1][8] In such cases, the deceased is described as having "died intestate," and the laws of intestate succession dictate how assets are allocated among eligible heirs.^[9] The scope of intestacy encompasses both real property, such as land and buildings, and personal property, including bank accounts, vehicles, and other tangible or intangible assets owned solely by the deceased without beneficiary designations.^[10] However, it excludes certain assets that pass outside the estate, such as life insurance proceeds, retirement accounts, or joint tenancy properties with rights of survivorship, which transfer directly to named beneficiaries or co-owners by operation of law or contract.^[11][12] Partial intestacy occurs when a valid will exists but fails to dispose of the entire estate, either due to oversight, invalid provisions, or subsequent asset acquisitions; in these instances, intestacy rules apply only to the undistributed portion of the property.^[13] Upon death, intestate assets typically undergo a probate or administration process supervised by a court, where an administrator is appointed to inventory the estate, settle debts and taxes, and distribute the remaining assets to statutory heirs in accordance with applicable succession laws.^[14] The term "intestacy" derives from the Latin intestatus, meaning "without a will" or "having made no testament," combining in- (not) with testatus (from testari, to bear witness or make a will).^[15]

Intestacy versus Testacy

Testacy refers to the legal status of a person who dies leaving a valid will, which specifies the distribution of their estate according to the decedent's instructions.^[16] In contrast, intestacy occurs when an individual dies without a valid will, resulting in the estate being distributed according to statutory rules that prioritize close relatives such as spouses and children.^[17] The primary differences between intestacy and testacy lie in control and flexibility. Under intestacy, assets follow a rigid, predefined order established by law, typically directing property first to a surviving spouse and descendants, with no provision for non-relatives like friends or charities unless they qualify as heirs.^[18] Testacy, however, allows the decedent to customize distributions, such as allocating portions to specific individuals, organizations, or even pets through testamentary trusts, thereby reflecting personal wishes rather than default legal presumptions.^[19] Testacy offers several advantages, including greater flexibility in asset allocation, opportunities for tax planning to minimize estate taxes, and the ability to designate guardians for minor children or specify end-of-life preferences.^[20] These elements can prevent unintended exclusions, such as disinheriting stepchildren or supporting causes important to the decedent. In comparison, intestacy disadvantages include the potential for family disputes over the statutory distribution, which may not align with modern family structures like blended families, and the exclusion of non-traditional beneficiaries who might otherwise receive support under a will.^[18] Statistics indicate that intestacy remains prevalent, with approximately 70% of adults in the United States dying without a valid will as of 2025, leading to statutory succession in a majority of cases.^[21] This high rate underscores the unintended outcomes often associated with intestacy, such as the need for court intervention through probate proceedings to appoint administrators and validate heirship, which can cause significant delays—sometimes months or years—in asset distribution.^[8]

Historical Development

Origins in English Common Law

The roots of intestacy rules in English common law trace back to the medieval period, particularly the 12th and 13th centuries, when the feudal system shaped property transmission following the Norman Conquest of 1066. Under this system, all land was held in tenure from the king or lords, and upon a tenant's death without heirs, the estate escheated to the immediate lord or ultimately to the Crown as bona vacantia, ensuring the continuity of feudal obligations and preventing fragmented holdings. This escheat mechanism underscored the hierarchical nature of land ownership, where inheritance served military and economic stability rather than individual preference.^[22] A key distinction arose between real property and personal property in intestate succession. Common law courts exclusively governed the descent of real estate, adhering to rigid feudal principles that prioritized lineage and tenure. In contrast, canon law, enforced through ecclesiastical courts, exerted significant influence over the distribution of chattels or movables, allowing partial testamentary freedom—such as one-third to the widow and one-third to the children—while intestate portions followed church-guided customs favoring family distribution. This jurisdictional divide, formalized by the late 12th century under figures like Glanville, reflected the interplay between secular feudal duties and ecclesiastical moral oversight.^[23] By the end of the 13th century, the common law had solidified primogeniture as the dominant rule for land inheritance, mandating that the entire estate pass to the eldest son to preserve the family's feudal obligations and military service capacity. If no sons existed, daughters inherited equally as co-heiresses, but males always took precedence over females in lineal and collateral lines; representation allowed issue of predeceased heirs to step in, while escheat occurred only after exhaustive searches for remote kin of the whole blood. Customary variations, such as gavelkind in Kent (partible among sons) or Borough-English (to the youngest son), existed but were exceptions to the nationwide primogeniture norm.^[24] William Blackstone's Commentaries on the Laws of England (1765–1769) provided a comprehensive synthesis of these intestate rules, outlining seven canons of descent that favored infinite lineal succession to issue, male preference, and primogeniture among brothers, while excluding half-blood collaterals and ascending inheritance. Blackstone emphasized that collateral heirs must trace kinship through the "blood of the first purchaser," reinforcing the system's focus on direct descendants to maintain estate integrity.^[25] These common law principles of intestacy were exported to British colonies, including North America, where they formed the foundational framework for inheritance practices before independence, often adapted through local statutes to suit colonial conditions.^[26]

Key Statutory Reforms

The Statute of Distributions of 1670 marked the first major codification of intestate succession rules in England, specifically addressing the distribution of personal property among next of kin. Prior to this, personal estates of intestates were often distributed at the discretion of administrators or ecclesiastical courts, leading to inconsistencies. The act mandated that, after payment of debts and funeral expenses, the surplus personal estate be divided: if the intestate left a wife and children, the wife received one-third, with the remainder shared equally among the children or their representatives; if no children, the wife took one-half, and the rest went to the next of kin in equal degrees, without representation beyond siblings' children.^[27] This per stirpes approach among lineal descendants and collaterals established a structured, equitable framework that influenced subsequent reforms, emphasizing distribution over arbitrary allocation.^[28] In the United States, post-independence reforms rapidly rejected English primogeniture, which had favored eldest sons for real property inheritance, in favor of egalitarian distribution schemes. Virginia's 1785 Act for Regulating Conveyances exemplified this shift, abolishing primogeniture and converting entailed estates to fee simple, allowing real property to descend equally among heirs as personalty did under the Statute of Distributions.^[29] By the 1780s, most states followed suit, adopting statutes that distributed both real and personal property per capita or per stirpes among children and spouses, reflecting republican ideals of equality and rejecting feudal hierarchies.^[30] Canadian provinces adapted English models with local modifications during the 19th century, as seen in Ontario's Devolution of Estates Act of 1897, which mirrored the UK's Intestates Estates Act of 1890 by unifying real and personal property distribution under intestacy. The act introduced a preferential $1,000 share for surviving widows, electable in lieu of traditional dower rights, providing enhanced financial protection while maintaining next-of-kin priorities similar to English law.^[31] This blend of imported principles and Canadian tweaks, such as explicit widow elections, facilitated smoother estate devolution in a colonial context. Subsequent UK reforms further prioritized nuclear family members. The Intestates' Estates Act of 1952 abolished remaining vestiges of unequal distribution, granting surviving spouses personal chattels plus £5,000 (or £20,000 without issue) outright, a life interest in half the residue, and equal shares for children under statutory trusts, ensuring no primogeniture.^[32] Building on this, the Inheritance and Trustees' Powers Act of 2014 increased spousal statutory legacies to £250,000 (with half the residue absolutely if issue exist, or the entire estate otherwise), while expanding family provision claims to allow courts to award shares to step-children treated as "children of the family" in cases of parental responsibility.^[33] The 2014 Act requires the Lord Chancellor to review the statutory legacy at least every five years; it was subsequently increased to £270,000 effective 6 February 2020^[34] and to £322,000 effective 26 July 2023.^[35] Across jurisdictions in the 19th and 20th centuries, intestacy laws trended toward safeguarding spouses and children at the expense of distant relatives, with equal shares for offspring replacing primogeniture and spousal portions evolving from life interests to absolute ownership. In the US, by the mid-20th century, over half of states granted spouses at least half the estate, often excluding collaterals entirely if issue survived. Similar patterns emerged in Europe, as in France's 1891 expansion of spousal usufruct and Germany's 1957 prioritization of surviving partners, reflecting broader societal shifts toward nuclear family protection.^[26]

Fundamental Rules of Intestate Succession

Determination of Heirs and Next of Kin

In intestate succession, heirs are legally designated individuals entitled to inherit the decedent's real property under statutory rules, while next of kin typically refer to those who succeed to personal property in the absence of closer relatives, though modern laws often unify these categories for both types of assets.^[36] This distinction originates from common law traditions but has largely been harmonized in contemporary statutes to simplify probate processes.^[37] Lineal descendants form the primary class of heirs, encompassing children and their issue, such as grandchildren, who inherit through direct bloodlines or legal equivalents.^[36] In modern law, adopted children are fully recognized as lineal descendants with equal inheritance rights to biological children, provided the adoption is legally formalized.^[38] Similarly, children born out of wedlock (illegitimate) qualify as heirs if paternity is established through legal acknowledgment, court order, or clear evidence, eliminating historical barriers to their succession rights.^[39] If no lineal descendants survive, ancestors and collateral relatives become eligible heirs, starting with parents (lineal ascendants) and extending to siblings, nieces, nephews, and more distant kin connected through a common ancestor.^[37] Half-blood relatives, such as half-siblings sharing only one parent, are generally included as heirs, with treatment varying by jurisdiction but often granting them equal shares to full-blood relatives in contemporary statutes, departing from common law preferences for whole blood.^[37] Stepchildren do not automatically qualify as heirs under intestacy laws unless they have been legally adopted by the decedent, as mere familial relationships through remarriage do not confer statutory inheritance rights.^[40] In cases where no qualifying heirs or next of kin can be identified, the decedent's property escheats to the state or, in certain common law jurisdictions, to the Crown, ensuring unclaimed assets revert to public ownership rather than remaining in limbo.^[41]

Distribution Schemes and Priorities

In intestate succession, assets are distributed according to a hierarchical priority order that favors close family members, beginning with the surviving spouse and descendants (commonly referred to as "issue"), followed by parents, siblings, and more remote kin if nearer relatives are absent.^[3] This order reflects a statutory intent to provide for those presumed to be most dependent on or closely related to the decedent, as codified in influential frameworks like the Uniform Probate Code (UPC), which serves as a model for many common law jurisdictions.^[42] Once heirs are identified through the process of determining next of kin, the estate is allocated starting with the highest-priority class until the estate is exhausted. The surviving spouse typically receives preferential entitlements, often including all personal chattels (such as household items and vehicles) and a fixed or elective share of the residue, with the exact portion varying based on surviving relatives—such as the entire estate if no descendants or parents survive, or a substantial fraction (e.g., one-half or more) if descendants from outside the marriage exist.^[42] This structure ensures the spouse's financial security, recognizing the marital partnership's contributions to the estate. Children's shares, in contrast, are divided equally among the issue after the spouse's portion, promoting fairness among siblings by treating each living child identically regardless of age or need.^[3] Distribution among descendants commonly employs two methods: per stirpes (by branch or representation) or per capita (by head). Under per stirpes, the estate is first divided equally among the decedent's children; if a child predeceases, their share passes equally to their own descendants, preserving family branches—for example, if a decedent leaves two living children and one predeceased child with two grandchildren, the estate divides into three equal parts, with the grandchildren splitting their parent's third (one-sixth each).^[43] Per capita distribution, less common but used in some modern schemes like the UPC's "per capita at each generation," allocates equal shares to all surviving descendants in the closest generation, with any deceased members' lines represented equally in subsequent generations—such as dividing equally among grandchildren if no children survive, rather than by parental branches.^[42] These methods balance equity between generations, with per stirpes emphasizing ancestral lines and per capita focusing on living individuals. If no surviving spouse or issue exists, the entire estate passes to the decedent's parents equally if both survive, or to the surviving parent; absent parents, it goes to siblings (or their descendants by representation) in equal shares.^[3] This progression continues to more distant relatives only if closer classes are depleted. Recent reforms, including the UPC's 2019 amendments and various state updates, have adapted intestacy rules to better reflect evolving family structures, such as blended families and assisted reproduction, thereby enhancing protections for heirs.^[44]

Handling Cases with No Heirs

When no eligible heirs can be identified under the rules of intestate succession, the deceased's estate undergoes escheat, a legal process by which unclaimed assets revert to the government as ownerless property. In common law jurisdictions, this typically means the estate passes to the state in the United States or to the Crown in the United Kingdom, often referred to as bona vacantia—Latin for "vacant goods." This outcome serves as the ultimate default in the absence of any entitled relatives, ensuring that property does not remain in legal limbo.^[45][46] The concept of escheat traces its origins to feudal England following the Norman Conquest in 1066, where land held under feudal tenure reverted to the lord or monarch if a tenant died without heirs, as all property was ultimately owned by the Crown and merely granted for use. This mechanism, derived from the Latin ex-cadere meaning "to fall out," functioned as a reversionary interest to prevent land from becoming ownerless within the hierarchical system of tenure. Over time, as feudalism waned, the practice evolved into a modern public fief, where the state or Crown steps in as the ultimate heir to promote efficient property administration and public benefit.^[47] In contemporary procedures, government agencies administer escheated estates through dedicated offices that collect, manage, and potentially distribute assets. For instance, in the United Kingdom, the Bona Vacantia Division of the Government Legal Department handles such cases in England and Wales, gathering assets from intestate estates without known kin and transferring them to the Crown; the Treasury Solicitor may exercise discretion to grant portions to distant relatives who fall outside statutory entitlement or to charities if claims arise. Similarly, in the United States, each state operates unclaimed property programs under laws modeled on the Uniform Unclaimed Property Act, where probate courts declare escheat after exhaustive heir searches, and assets like bank accounts or real estate are held in perpetuity for potential reclamation by late-discovered heirs, subject to statutes of limitations. These processes emphasize thorough genealogical investigations before final reversion, often involving public notices and professional heir hunters.^[46][48][45] Escheat of intestate estates remains relatively rare, occurring only after the broad priority order of heirs—extending to distant cousins in many jurisdictions—has been exhausted, with estimates suggesting it affects a small fraction of cases due to the prevalence of traceable relatives. To prevent this outcome, individuals are encouraged to execute a valid will, which designates beneficiaries and overrides intestacy rules, thereby directing assets to intended parties rather than the state.^[3][49]

Intestacy Laws in the United Kingdom

England and Wales

In England and Wales, the rules governing intestate succession are set out in section 46 of the Administration of Estates Act 1925, as amended by the Inheritance and Trustees' Powers Act 2014, which establishes a hierarchical order of entitlement for the distribution of the deceased's residuary estate.^[50] These provisions prioritize close family members, reflecting a statutory framework designed to ensure orderly transfer of property without a will, while incorporating updates to adapt to economic changes. A surviving spouse or civil partner holds the highest priority. If the intestate leaves no issue (defined as children or their descendants), the spouse or civil partner inherits the entire estate absolutely.^[50] Where issue survive, the spouse or civil partner receives all personal chattels (such as household items and jewelry), a statutory legacy currently fixed at £322,000—up from £270,000 following an increase effective 26 July 2023 to reflect inflation—and half of the remaining residuary estate, with the other half held on statutory trusts for the issue (typically distributed per stirpes).^[35][51] This legacy adjustment aims to simplify administration for modest estates, as a spouse or civil partner now inherits everything outright if the net estate (after debts and expenses) does not exceed the legacy amount plus chattels.^[35] When the residuary estate must be divided among multiple beneficiaries, such as issue sharing under statutory trusts or in other scenarios, indivisible assets like a family home may necessitate agreement among heirs. Options include selling the property and splitting the proceeds with other assets; one beneficiary buying out the others' shares; or retaining joint ownership as tenants in common.^[52] In cases with no surviving spouse or civil partner, the estate passes in equal shares to the issue, with descendants of any predeceased child taking their parent's share per stirpes.^[50] If there are no issue, the estate goes equally to the deceased's parents (or the surviving parent); absent parents, it is divided among full siblings of the whole blood or their issue, with half-blood siblings (sharing only one parent with the deceased) included equally thereafter.^[50][7] Adopted children are treated identically to biological children as issue, but step-children receive no entitlement unless they have been legally adopted by the deceased.^[53][54] Further down the line of succession, if no siblings or their issue exist, the estate passes to grandparents (equally or to survivors), then to uncles and aunts of the whole blood or their issue, followed by half-blood equivalents; in the total absence of kin, the estate escheats as bona vacantia to the Crown, Duchy of Lancaster, or Duke of Cornwall.^[50] Cohabitees, regardless of relationship duration, are entirely unprotected under these rules and have no automatic inheritance rights, highlighting a key limitation of the statutory scheme.^[7][5]

Scotland

Scotland's intestacy laws are governed primarily by the Succession (Scotland) Act 1964, as amended by subsequent legislation including the Trusts and Succession (Scotland) Act 2024.^[55][56] Unlike the unified approach in England and Wales, Scottish law distinguishes between heritable estate (land and buildings) and moveable estate (all other assets, such as money, investments, and personal property), reflecting its civil law heritage. On intestacy, the estate is distributed in a structured manner prioritizing the surviving spouse or civil partner and issue (children or their descendants), with forced heirship provisions ensuring certain automatic entitlements. The surviving spouse or civil partner holds prior rights to specific portions of the net heritable estate. These include the right to the deceased's interest in a dwelling house up to a value of £473,000, provided it was the matrimonial home; furniture and plenishings up to £29,000; and a cash sum of £50,000 if there are surviving issue, or £89,000 if there are none.^[57][58] These rights must be satisfied before other distributions and are satisfied from the heritable estate where possible, with any shortfall covered by the moveable estate. Following prior rights, legal rights apply exclusively to the net moveable estate and function as a form of forced heirship, entitling the surviving spouse or civil partner and issue to fixed shares regardless of any will—though on full intestacy, they form the core of the distribution. If both a spouse or civil partner and issue survive, the spouse receives one-third (jus relicti), the issue share one-third equally (legitim), and the remaining one-third of the moveable estate (free estate) passes to the spouse. If only the spouse or civil partner survives, they receive one-half of the moveable estate as legal rights, with the free estate also going to them. If only issue survive, they receive one-half of the moveable estate as legitim, with the free estate divided equally among them.^[59][60] Heritable estate beyond prior rights is then distributed according to the same heirship order. In the absence of a surviving spouse or civil partner, the entire net intestate estate—both heritable and moveable—is divided equally among the issue, with per stirpes distribution to descendants if any child predeceases. Primogeniture for heritable property was abolished by the 1964 Act, ensuring equal shares among heirs rather than preference for the eldest. If no issue survive, the estate passes to parents equally, or if none, to siblings (or their issue per stirpes), followed by remoter collaterals such as uncles, aunts, and their descendants, in a descending order of kinship. With no qualifying heirs, the estate escheats to the Crown.^[61] A distinctive feature of Scottish intestacy is the legal rights mechanism, which guarantees shares to the spouse or civil partner and issue from the moveable estate even if a will exists, providing stronger protections against disinheritance than in England and Wales, where no equivalent forced heirship applies.^[62] Recent updates under the Trusts and Succession (Scotland) Act 2024, effective from April 2024, include a reordering of intestate succession to prioritize the surviving spouse or civil partner above parents and siblings when no issue exist, ensuring they inherit the entire net estate in such cases—a clarification addressing prior ambiguities in the 1964 Act.^[63] The monetary thresholds for prior rights are adjusted periodically for inflation by the Scottish Ministers, with the latest values set in 2012 and no further major revisions between 2023 and 2025.

Intestacy Laws in Canada

Federal and Common Provincial Features

In Canada, intestacy laws governing the distribution of estates without a will are primarily a matter of provincial and territorial jurisdiction under the Constitution Act, 1867, which assigns authority over property and civil rights, including succession, to the provinces and territories.^[64] There is no comprehensive federal intestacy legislation; instead, the federal government administers estates only in specific contexts, such as for certain Indigenous persons under the Indian Act or in the territories of Yukon, Northwest Territories, and Nunavut, where territorial laws mirror provincial models.^[65] This decentralized approach ensures that intestate succession aligns with regional legal traditions, rooted in English common law for most provinces except Quebec. Across Canadian provinces and territories, intestacy rules share core features designed to prioritize close family members, particularly spouses and descendants. A surviving spouse typically receives a preferential share of the estate—ranging from $50,000 to $350,000, depending on the jurisdiction, for example $350,000 in Ontario and $300,000 in British Columbia (or $150,000 if no common children)—before the residue is divided, often entitling the spouse to half of the remaining assets while children share the other half equally.^[66][67] Distribution to descendants follows a per stirpes approach, where a deceased child's share passes to their own issue, promoting generational equity. Adopted children are treated equivalently to biological children, and children born out of wedlock (illegitimate) inherit on the same basis as those born within marriage, reflecting modern equality principles; however, stepchildren are generally excluded unless legally adopted.^[68][69][70] If no eligible heirs exist under these schemes—such as no surviving spouse, descendants, parents, siblings, or more distant kin—the estate escheats to the provincial or territorial Crown, becoming bona vacantia and administered for public purposes.^[71] Efforts toward uniformity have been advanced by the Uniform Law Conference of Canada (ULCC) through model acts, such as the Uniform Intestate Succession Act, which have influenced provincial legislation by standardizing heir priorities and spousal entitlements since the mid-20th century. In 2025, provincial reforms continued to address evolving family structures, notably in Ontario where amendments to the Succession Law Reform Act effective January 1, 2025, exclude separated spouses (those living apart for three years due to marriage breakdown) from intestate spousal entitlements.^[72]

Key Provincial Variations

In common law provinces such as Ontario, intestate succession prioritizes the surviving spouse with specific entitlements under the Succession Law Reform Act, provided the spouses were not separated at the time of death. As of January 1, 2025, separated spouses living apart for three years due to marriage breakdown are treated as non-spouses and excluded from inheritance rights. The spouse receives all personal chattels and a preferential share of $350,000 from the net estate (as of March 1, 2021, adjusted periodically via regulation to reflect economic conditions); any residue is then divided equally between the spouse and issue if there is one child, or one-third to the spouse and two-thirds shared among the issue if there are two or more children.^[72] Quebec, operating under civil law principles in the Civil Code of Québec, diverges significantly by incorporating forced heirship protections known as the réserve héréditaire, which reserves two-thirds of the estate for descendants in intestate cases, ensuring children cannot be fully disinherited even without a will. The surviving spouse is entitled to one-third of the succession outright, or alternatively may elect a usufruct over the family residence and movable property, though this option is limited and requires prompt claim; this structure emphasizes descendant rights over spousal exclusivity, contrasting with common law jurisdictions.^[73] Other provincial variations include British Columbia's provision under the Wills, Estates and Succession Act, where the surviving spouse holds a right to the family home—up to its appraised value—to satisfy part or all of their share, exempting it from immediate division among heirs and prioritizing spousal housing needs. In Alberta, intestacy rules under the Wills and Succession Act extend preferences to dependent adult children, allowing them to claim additional support from the estate beyond standard per stirpes distribution if they demonstrate financial dependency, a feature not uniformly present elsewhere.^[67] Canada's territories generally mirror the intestacy regimes of proximate provinces—for instance, Yukon and the Northwest Territories align closely with common law models like Ontario's, while Nunavut incorporates elements adaptable to Inuit customary law but defaults to federal common law principles for distribution. Cohabiting partners remain unprotected under intestacy in most provinces, receiving no automatic share unless legally married; however, exceptions exist in jurisdictions like British Columbia and Alberta, where common-law spouses cohabiting for at least two years in British Columbia or three years in Alberta (or less if they have a child together or a written agreement) qualify as "spouses" or Adult Interdependent Partners for inheritance purposes.^[67][74]

Intestacy Laws in the United States

The Uniform Probate Code Approach

The Uniform Probate Code (UPC) was promulgated by the Uniform Law Commission in 1969 as a comprehensive model law aimed at standardizing and simplifying probate procedures across the United States, with drafting efforts beginning in 1964 to address inconsistencies in state laws governing decedents' estates.^[75] The UPC has undergone several revisions, including significant updates in 1990 to refine intestacy rules and elective shares, further amendments in 2008 and 2010 for alignment with trust law, and the most recent changes in 2019 to incorporate modern family structures and spousal rights.^[76] As of 2024, the UPC has been adopted in whole or in part by 18 states—Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Pennsylvania, South Carolina, and Utah—while influencing partial reforms in many others to promote uniformity in probate administration.^[77] Under Article II of the UPC, intestate succession prioritizes the surviving spouse, who receives the entire estate if no descendants or parents of the decedent survive, or if all surviving descendants are also descendants of the spouse and there is no other descendant of the surviving spouse who survives the decedent.^[76] In other scenarios, the spouse's share is calculated as follows: the first $300,000 (as adjusted for inflation under § 1-109 based on the U.S. Department of Labor Consumer Price Index) plus three-fourths of the balance if no descendants survive but a parent does; the first $225,000 (adjusted) plus one-half of the balance if all surviving descendants are shared with the spouse but the surviving spouse has one or more surviving descendants who are not descendants of the decedent; or the first $150,000 (adjusted) plus one-half of the balance if one or more surviving descendants are not descendants of the spouse. As of 2025, these adjusted amounts vary by state based on adoption date and CPI calculations, for example approximately $308,700, $231,525, and $154,350 in states adjusting for 2025.^[42][78] These provisions ensure the spouse receives a substantial portion, reflecting a policy of protecting the marital partnership by allocating at least half the estate in most cases involving children.^[79] For the portion of the estate not passing to the surviving spouse, distribution to descendants occurs under UPC § 2-106, which applies equal shares per capita among the decedent's surviving children and the surviving descendants of any deceased children, with those descendants taking per stirpes by representation—meaning the share of a deceased child is divided equally among their own surviving issue.^[76] If there is no surviving spouse or descendants, the estate passes to the decedent's parents equally under § 2-103; absent parents, it goes to the descendants of the parents (i.e., siblings of the decedent and their issue, again per stirpes); and if none, to more remote kindred such as grandparents or their descendants.^[80] The UPC defines heirs to include adopted children as equivalent to natural children for intestacy purposes under § 2-109, provided the adoption is legally recognized, while stepchildren generally do not qualify unless they have been formally adopted or a parent-child relationship is established through other legal means such as equitable adoption in limited jurisdictions.^[76] In cases with no identifiable heirs under the succession scheme, § 2-105 directs escheat of the estate to the state of the decedent's domicile. The UPC's standardized framework offers key advantages, including simplification of administration for multi-state estates by reducing conflicts arising from divergent state laws, thereby minimizing litigation and costs in ancillary probate proceedings.^[81] It also promotes spousal equality by prioritizing the surviving spouse's share over collateral relatives and incorporating protections like the elective share in § 2-202, which allows a spouse to claim up to one-third of the augmented estate regardless of intestacy, aligning with partnership theory in marriage.^[82]

State-Specific Differences

Intestacy laws in the United States exhibit significant variations across states that have not fully adopted the Uniform Probate Code (UPC), reflecting differences in historical common law traditions, civil law influences, and policy priorities regarding spousal and familial protections. These deviations often manifest in how property is classified and distributed, particularly in community property states and those with civil law roots, leading to unequal treatment compared to UPC-aligned jurisdictions where spouses typically receive larger shares when descendants are present.^[83] In community property states like California, which have not adopted the UPC, the surviving spouse inherits the entirety of the decedent's share of community property—assets acquired during the marriage—while separate property (acquired before marriage or by gift/inheritance) is divided differently. For separate property, if the decedent is survived by a spouse and issue (children or their descendants), the spouse receives one-half if there is one child (or issue of one child) or no issue but parents/siblings, but one-third if there are multiple children (or one child and issue of deceased children), with the issue taking the remainder in equal shares per stirpes; if no issue but parents or siblings survive, the spouse gets one-half of the separate property.^[84][85] This structure prioritizes marital property unity but limits spousal claims on premarital or gifted assets, contrasting with UPC states where spouses often inherit a larger portion regardless of property classification.^[84] Southern states influenced by civil law, such as Louisiana—the only state retaining a full civil law system for succession—impose forced heirship protections that limit spousal rights and ensure minimum shares for certain children. Under current law, forced heirs include descendants under 24 years old or of any age if permanently incapable of self-care due to physical or mental incapacity; a single forced heir is entitled to one-fourth of the estate (the "legitime"), while two or more share one-half collectively, even if the decedent attempted to disinherit them via will.^[86][87] In intestate cases with a surviving spouse and children, the spouse receives full ownership of their own community property share and a legal usufruct (lifetime use) over the decedent's community property share, but children hold naked ownership of that property and inherit all separate property outright, subordinating spousal control.^[87][88] This forced heirship regime, reformed in 1995 to narrow its scope, continues to restrict spousal inheritance compared to common law states.^[86] Spousal shares under intestacy further vary by state, ranging from the entire estate in the absence of descendants to more limited fixed amounts or fractions when children are involved. For instance, in some non-UPC states like Georgia and Idaho, the surviving spouse inherits the full estate if there are no children, but only one-half if children from the marriage exist; in Florida, the surviving spouse receives the entire intestate estate if there are no descendants or if all descendants are also descendants of the spouse, but only one-half if there are descendants who are not descendants of the spouse, with the remainder passing to those descendants per stirpes, a scheme less generous to the spouse than the UPC's escalating share based on the presence of descendants.^[89] However, older rules in states like New York (pre-reform influences lingering) provide the spouse with a fixed $50,000 plus one-half of the remainder when descendants survive, with the rest to issue— a formula unchanged since 1966 and less generous than modern UPC adjustments.^[90][91] These disparities highlight how state policies balance spousal security against descendant claims, with non-UPC states often favoring fixed or fractional limits over percentage-based escalations.^[83] Treatment of half-blood relatives also differs, with some states imposing unequal shares to prioritize full-blood kin when the inheritance traces to a common ancestor. In Florida, for example, half-blood collaterals (such as half-siblings) inherit only half as much as whole-blood relatives of the same degree, unless all eligible heirs are half-blood, in which case they share equally; similar rules apply in Virginia and Kentucky.^[92][93][94] This half-share reduction, rooted in traditional English common law, contrasts with UPC states and others like California where half-blood heirs receive equal per capita shares.^[95] Recent updates to intestacy laws between 2023 and 2025 have been minor, primarily involving inflation adjustments to fixed spousal allowances or elective shares rather than structural overhauls. For example, the federal estate tax exemption rose to $13.99 million in 2025 due to inflation indexing.^[96] In cases with no identifiable heirs, intestate estates escheat to the state, typically directed to general revenue funds or specific purposes like public education. In California, unclaimed estates revert to the state's general fund after a search for heirs; Texas channels them to the Permanent School Fund, while New York's escheats support education initiatives.^[84][2] This ultimate disposition underscores the state's role as a residual beneficiary in the absence of private claimants.^[37]