Intestate succession laws determine which family members inherit property from someone who has died without a will. But who counts as “family” under the law?
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When a person dies without a valid will, they leave behind an “intestate estate.” A probate court then distributes their property according to that state’s intestate succession laws. Generally, only people related to the deceased by blood, marriage, or adoption are eligible to inherit, such as your spouse, parents, and children. This framework reflects the idea that most people live in a “traditional” nuclear family – that is, two married parents and their biological children. However, that is not the reality for a significant percentage of the population.
What Is a Nontraditional Family?
Calling other types of family structures “nontraditional” is a bit of a misnomer because they have always existed. Unfortunately, laws do not reflect the variety of households and cultural differences across the country. As a result, your loved ones and next of kin might be cut off from receiving your property if you die intestate, meaning without a will. Examples of nontraditional families include:
- Single parent households
- Unmarried cohabitating couples (only a few states recognize domestic partnerships and common law marriages)
- Nonmarital children, such as stepchildren or foster children
- Children conceived from assisted reproductive technology (such as in-vitro fertilization or artificial insemination)
- Surrogacy agreements
- Divorced and blended families
- Informal custody arrangements, such as a minor child living with a relative or family friend
- Polyamorous relationships
Who Can and Cannot Inherit?
Family members related by blood, marriage, or adoption can inherit your intestate estate. Intestate succession laws do not favor any family member not related biologically or with whom you have not signed a legal agreement. These people include:
- Stepfamily (stepchildren, stepparents, stepsiblings)
- Unmarried partners (in most states)
- Biological children given up for adoption
- Foster children
Spouses and Partners
There is endless debate about the benefits of marriage, but only the people in the relationship can truly determine what is best for them. While some marry for tax benefits, others, such as those with disabilities, stand to lose access to federal benefits. In some states, your spouse will inherit your entire estate if you die without a will. Without a marriage license, writing your last will and testament is even more crucial.
In a legal marriage, spousal inheritance rights depend on whether the couple lives in a “community property” state or a “common law” state. However, most nonmarital partners do not enjoy the same presumption under intestacy laws.
Domestic partnerships and civil unions: Although not recognized by the federal government, couples can legally register as a domestic partnership or civil union in several states. The benefits and procedures vary by state, but people in these arrangements typically enjoy fewer legal benefits than their married counterparts. Whether a partner inherits anything depends on their state’s intestacy laws. Some states permit partners to inherit from each other as they would if they were married, while others allow a specific portion. Check your state’s laws on domestic partnerships for more information. States are not legally obligated to recognize domestic partnerships and civil unions from other states that permit them.
Common Law Marriage: If two people cohabitate and present themselves as a married couple, a few states will consider them married under common law after enough time has passed. Once established, intestate succession laws treat the couple as married, and they inherit the same as any other married couple in their state. If a common law marriage is not established before one partner dies, the surviving spouse must prove their marital status in order to inherit their belongings and receive financial benefits. All 50 states are obligated to recognize common law marriages from states where they are permitted.
Cohabitating: Two people living together, in a relationship or otherwise, will not automatically inherit from the other’s intestate estate. Unmarried couples that acquire property together can protect their rights by owning as joint tenants or tenants-in-common. Before moving in, learn what to do and what to avoid to avoid future hardships.
Need help determining what arrangement is best for your relationship? Check out this Marriage vs. Cohabitation comparison chart.
Plural marriage, such as polygamy, is outlawed throughout the United States. Polyamory, which is the practice of having multiple partners regardless of marriage, has not been legally addressed. Nonetheless, without a will in place, standard intestate succession laws apply, and the decedent’s estate goes to partners to whom they are legally bound. In addition to writing a will, polyamorous and multi-parent families can protect their rights with supplemental legal arrangements.
Children Raised by Nonbiological Parents
Children born to a heterosexual married couple are legally assumed to be their children. Children born outside of wedlock face different circumstances and (depending on state law) may have to establish paternity to inherit from their fathers under intestacy law. However, whether a child’s parents were married cannot impact their government benefits.
Children raised by family members, family friends, and other nonbiological or nonadoptive parents may inherit through their guardians in some circumstances, as described below.
In a classic adoption scenario where one family adopts a child from another, the adopted child is treated in the eyes of the law as though they are the biological child of their adoptive parent(s). Therefore, if an adoptive parent dies intestate, the adopted child has a right to inherit them. However, an adopted child cannot inherit an intestate estate from their biological parents because the adoption severs their legal relationship.
Second parent adoptions (or “coparent adoptions”) occur where only one parent is biologically related to the child. These include stepparent adoptions, LGBTQ+ families where one parent is biologically related to their child, or where a couple uses donor sperm or egg from a third party. Adoption by the second parent does not end the legal parenting rights of the first, and the child can automatically inherit from both primary (biological and adoptive) parents if they were to die intestate. Adopted adults have the same legal protections as adopted children.
There are several inheritance rules specific to stepparent adoptions, which usually terminate the legal rights of the other biological parent (not the one to whom they are married):
- If a child is adopted by a stepparent who marries their biological parent (“Parent A”), the child still has a right to inherit through that same birth parent (Parent A). State law varies on whether the child is cut off from inheriting from and/or through the other biological parent (“Parent B”), but it is usually prohibited.
- If a child is adopted by a stepparent (such as Parent A’s partner) after their biological parent (Parent B) dies, the child has the right to inherit from their deceased biological parent (Parent B), unless Parent B’s parental rights were terminated before their death.
Remember, a parent of any sort can add nonbiological children as a beneficiary designation in their will. Note, however, that you cannot substitute a class of people for someone specific – if a new spouse only names “my children” in their will, it will not include stepchildren who have not been adopted.
De Facto Parents and Equitable Adoption
Third parties, such as a grandparent or other relative, family friend, nonadoptive stepparent, or foster parent, can be considered “de facto” parents if they are raising and providing everyday needs for a child. A de facto parent, recognized by different states as a “psychological parent,” “in loco parentis,” “equitable parent,” or “parent by estoppel,” does not need to be connected to the child by biology or marriage and most states grant them at least some legal parental rights.
States that permit parentage under the equitable adoption doctrine or parentage by estoppel theory generally allow children of those parents to inherit their intestate estate.
Under the Uniform Parentage Act, a child’s nonadoptive caregiver can petition the court to be recognized as a de facto parent if they lived with the child, took full parental responsibility, established a parental bond, and publicly acted as a parent. (UPA 2017 § 609) De facto parenthood must be established while both the parent and child are alive and while the child is under 18 years old. Not every state has adopted the most recent version of the UPA, and different states use different tests to determine whether someone qualifies as a de facto parent. Check to see whether your state recognizes de facto parents.
While low in the hierarchy, siblings can inherit under intestate succession rules. This event usually only happens if the deceased person has no spouse or domestic partner, children, grandchildren, or parents. Because intestate succession laws focus on blood relatives and adoptees, biological and adopted siblings will inherit automatically. Half siblings will also inherit, but stepsiblings that have not been adopted by the parent of the deceased will not.
Your nieces and nephews will only inherit from your intestate estate through their parents.
Assisted Reproductive Technology
Every year, roughly two percent of all infants born in the US are conceived with assisted reproductive technology (ART), such as in vitro fertilization or artificial insemination. Generally, the parent whose sperm is used is assumed to be the legal parent. However, when the birthing parent gets pregnant while using a donor egg, the child is assumed to be that of the birthing parent. Anonymous sperm donors do not have parental rights. Children born from ART have the same inheritance rights as another biological or adopted child.
One of the most complicated inheritance issues surrounding ART is regarding children born or conceived after a biological parent has died. Under the Uniform Parentage Act, there must be evidence that the deceased parent intended for the posthumous child to inherit from them. State law varies, but whether the child can inherit an intestate estate often depends on how long the child was conceived or born after death. In 2012, the Supreme Court ruled that a child conceived after the death of their biological father can receive Social Security benefits if the child is legally entitled to inherit from him under state law (Astrue v. Capato).
Surrogacy is not legally permitted in all 50 states and is not regulated at a federal level. Some states, such as New York, require parents to have a last will and testament, including a named guardian, in place before a surrogacy contract is considered legitimate. Check this map for details on surrogacy regulation in your state.
DIY Your Will
Intestacy laws are old and complicated, and many loved ones are left out. As the testator, you can avoid many pitfalls for your “nontraditional” family relationships. How you distribute your assets, from real estate to real property, will significantly impact your family and can help everyone plan for the future. Wills are not just something to do when you retire – emergencies can happen any day. Start your will today using FindLaw’s state-specific Last Will and Testament Forms.
Your will is one of many important estate planning documents you will need. In the event of a medical emergency, you should have a living will that addresses your health care preferences, including the intent and instructions for using your genetic material in ART. Use FindLaw’s Health Care Directive and Living Will Forms to record your wishes easily.
Consult an Attorney
If you have concerns about accounting for everyone in your estate documents, consult an estate planning attorney in your state. Separately, a family law attorney can help you create legal relationships with your loved ones to ensure they will not be left in the cold if you die without a valid will.