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When a Spouse Dies Without a Will

By Catherine Hodder, Esq. | Last updated on

It is devastating to lose your spouse. But if they die without a will, it can cause even more grief and stress. Many people assume that they automatically inherit all of their spouse's property; however, that is not the case.

When you die without a will, you are “intestate," and a court follows state intestacy laws to distribute your property. Intestate succession laws provide for close relatives, but you may disagree with your state's distribution plan.

And there are hurdles to receiving your property. The surviving spouse will have to file for their intestate share in probate court. And as part of the probate process, you will have to prove you were legally married to your spouse, the decedent.

Unfortunately, this was the case when Stephen “tWitch" Boss, the DJ for the Ellen DeGeneres show, died. Although married for over nine years, his widow, Allison Holker, has to petition a court for half of their joint estate. She must prove that she is his spouse and entitled to an intestate share.

An Example of Intestate Distribution

California, where the couple resides, is a community property state. When a spouse dies without a will, under California's intestacy laws, the surviving spouse receives:

  • One-half of the community property belonging to the deceased spouse
  • One-half of the quasi-community property belonging to the deceased spouse

Then the court distributes the decedent's separate property depending on the deceased spouse's family structure.

The surviving spouse receives one-half of the deceased spouse's separate property if:

  • The deceased spouse has one child (or grandchildren from that child if that child died before the deceased spouse).
  • The deceased spouse has a living parent or parents or siblings.

The other half of the deceased spouse's separate property goes to the decedent's child, grandchildren, parents, or siblings.

The surviving spouse receives one-third of the deceased spouse's separate property if:

  • The deceased spouse leaves more than one child.
  • The deceased spouse leaves one child, and the issue of one or more deceased children (grandchildren).
  • The deceased spouse leaves the issue of two or more deceased children (grandchildren).

Two-thirds of the deceased spouse's property goes to their surviving children or grandchildren.

The Benefit of Making a Will

Estate planning-wise, the most important thing a spouse can do is make a last will and testament. Not only does a will allow your spouse to give their entire estate to you, but it also allows them to:

  • Name a personal representative to administer their estate
  • Name a guardian for minor children if there is no surviving parent
  • Make specific gifts of cash or personal property to a specific beneficiary
  • Make charitable donations from their estate
  • Give gifts to loved ones, such as stepchildren, who will not receive an intestate share

Dying without a will means more money and time spent in probate, and it causes delays in asset distribution.

Estate Planning in Addition to Making a Will

Certain property or assets do not transfer to a spouse or family members through a will. For example, if your spouse has a transfer-on-death bank account, retirement account, IRA, or investment account, the assets go to the named beneficiary designation. Similarly, your spouse may have life insurance policies with you named as beneficiary. To receive those assets or life insurance proceeds, you must contact the banks or companies with a death certificate.

And if you hold real estate in joint tenancy with the right of survivorship with your spouse, you inherit the property when they die.

It is easy to make a valid will and other estate planning documents with state-specific online forms if you have a simple estate. If you are concerned about dependents with special needs or estate taxes, contact an estate planning attorney for legal advice.

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