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The law of intestacy governs the distribution of a person’s assets if they die without a will. The person who dies and subsequently whose property distribution is at stake is called thedecedent. With the advancements of modern technology and the advent of online legal services, it probably seems pretty unlikely that a person would die without a will. However, the reality of the situation is that approximately one-half of the American population dies intestate. This occurs so frequently because people have a hard time confronting the unpleasantness of mortality, which often leads to procrastination. The particular state’s Statute of Descent and Distribution will govern the property of a person who dies without a will. The term “real property” refers to immovable property such as land or real estate. The term “personal property” refers to moveable property such as cars or jewelry. The general rule is that the law of the state where the decedent was living at the time of his/her death will govern the distribution of the personal property. On the other hand, the law of the state where the decedent’s real property is located will decide how to dispose of the real property.

Under common law, a surviving marital spouse was not entitled to receive any of their deceased spouse’s land if they died without a will. Under modern law, most state jurisdictions have enacted surviving spouse statutes as a way to protect the spouses of people who die without a will. Under many state’s surviving spouse statutes, the surviving spouse usually receives approximately one-half of the deceased spouse’s estate. However, the mathematical calculation of a surviving spouse’s share has the potential to vary significantly between states. Under Florida law, if all the descendants are from the same marriage, the surviving spouse takes $60,000 plus one-half of the remaining estate, and the other one-half passes to the descendants. If any of the descendants are only the decedent’s descendants, then the surviving spouse takes one-half of the estate and the other one-half passes to the descendants. If there is no surviving spouse, the entire portion of the decedent’s estate passes to the descendants. Lastly, if there is no surviving spouse or surviving descendants, the entire estate passes to the decedent’s parents or surviving parent.

In all jurisdictions, after the surviving spouse takes his/her share, the descendants of the decedent take the remainder of the property. The typical intestate shares of the decedent’s descendants are calculated according to three different categories: strict per stirpes, per capita with representation, or per capita at each generation. About one-third of U.S. states adhere to the strict per stirpes distribution, which divides the remaining property into as many equal shares as there are living children of the decedent. Nearly one-half of the states follow the per capita with representation distribution scheme, which divides the property equally at the first generation where there is at least one living descendant. The remaining states in the U.S. follow the per capita at each generation distribution, which makes the initial division of the property shares at the level where one or more descendants are living, and the shares of the dead descendants on that level are combined and then divided equally among the surviving descendants below them.

Intestacy

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