division of intestate property
All 50 states and the District of Columbia address the disposition of real and personal property in the event an individual dies intestate. State statutes vary widely in this regard, and even with the advent of the Uniform Probate Code, many use antiquated terms, making the rules difficult to understand.
Each state describes how heirs are awarded property—typically (and in various orders) to the spouse, children, descendants, parents and siblings. If no heirs can be found among these individuals, state laws go to great lengths to recognize ancestral heirs before awarding property to the state through "escheat" provisions.
Each state also addresses distribution to heirs and descendants who have predeceased the individual that died intestate. States generally follow one of three main patterns that base distribution on the share that would have been distributed to predeceased heirs had they survived to take a share. The graphics illustrate the how these patterns operate. Strict Per Stirpes Under this ancient regime (sometimes called "English per stirpes"), the estate is divided among the first generation with surviving members or members with surviving descendants. Living heirs take their share. The portions belonging to deceased heirs with descendants pass to the living members of the next generation (by bloodline).
Each state describes how heirs are awarded property—typically (and in various orders) to the spouse, children, descendants, parents and siblings. If no heirs can be found among these individuals, state laws go to great lengths to recognize ancestral heirs before awarding property to the state through "escheat" provisions.
Each state also addresses distribution to heirs and descendants who have predeceased the individual that died intestate. States generally follow one of three main patterns that base distribution on the share that would have been distributed to predeceased heirs had they survived to take a share. The graphics illustrate the how these patterns operate. Strict Per Stirpes Under this ancient regime (sometimes called "English per stirpes"), the estate is divided among the first generation with surviving members or members with surviving descendants. Living heirs take their share. The portions belonging to deceased heirs with descendants pass to the living members of the next generation (by bloodline).
In the graphic, when George dies, the first generation with surviving members or members with surviving descendants is Generation 1—Benjamin, Betsy and Ross. While all in this generation have predeceased George, two of the three (Betsy and Ross) have living descendants, and George's $150,000 estate is divided equally ($75,000 each) between them.
Since Betsy is not living, her $75,000 portion would have gone to Bart. However, since he is also deceased, the $75,000 is split equally between his children—Bonnie, Bernie and Bill ($25,000 each).
Since Ross is also not living, his $75,000 portion is divided between his sons, Rex and Ralph. Ralph keeps his $37,500 portion. However, since Rex is deceased, his children Rhonda and Ringo split his $37,500 portion equally ($18,750 each).
Note that the members of Generation 3 do not take equal amounts despite being at the same generational level, and Rachel takes nothing since Ralph is alive to accept his portion.
Per Capita by RepresentationThis more modern version of strict per stirpes distribution is sometimes referred to as "American per stirpes." Here, the estate is first divided at the first level where there are surviving descendants. The estate is then divided according to the strict per stirpes rule.
Since Betsy is not living, her $75,000 portion would have gone to Bart. However, since he is also deceased, the $75,000 is split equally between his children—Bonnie, Bernie and Bill ($25,000 each).
Since Ross is also not living, his $75,000 portion is divided between his sons, Rex and Ralph. Ralph keeps his $37,500 portion. However, since Rex is deceased, his children Rhonda and Ringo split his $37,500 portion equally ($18,750 each).
Note that the members of Generation 3 do not take equal amounts despite being at the same generational level, and Rachel takes nothing since Ralph is alive to accept his portion.
Per Capita by RepresentationThis more modern version of strict per stirpes distribution is sometimes referred to as "American per stirpes." Here, the estate is first divided at the first level where there are surviving descendants. The estate is then divided according to the strict per stirpes rule.
In the graphic, the first generation with surviving members is Generation 2, where Bart, Rex and Ralph all have surviving children. The estate is divided in three equal parts between Bart, Rex and Ralph (instead of two parts, as under the strict per stirpes method), with each receiving $50,000. Ralph keeps his portion, but since Bart and Rex are deceased, their portions are divided equally among their children.
Note that this method also results in unequal distribution to Generation 3, with Bonnie, Bernie and Bill each receiving $16,667, Rhonda and Ringo each receiving $25,000, and Rachel receiving nothing (since her father, Ralph, is alive to keep his share).
Per Capita at Each GenerationThis method results in equal treatment of Generation 3. The estate is divided as in the per capita by representation regime, but any shares that drop to the next generation due to a predeceased ancestor are first pooled and then divided among members of that generation
Note that this method also results in unequal distribution to Generation 3, with Bonnie, Bernie and Bill each receiving $16,667, Rhonda and Ringo each receiving $25,000, and Rachel receiving nothing (since her father, Ralph, is alive to keep his share).
Per Capita at Each GenerationThis method results in equal treatment of Generation 3. The estate is divided as in the per capita by representation regime, but any shares that drop to the next generation due to a predeceased ancestor are first pooled and then divided among members of that generation
In the graphic, the first generation with surviving members is Generation 2, so the estate is again divided in three equal parts, with Bart, Rex and Ralph each taking $50,000. Ralph is alive to keep his share, but Rex and Bart are deceased. Instead of proceeding with a per stirpes distribution, the portions belonging to Rex and Bart are first pooled, then distributed equally to their children—Bill, Bernie, Bonnie, Rhonda and Ringo each take an identical share of $20,000 ($100,000 divided by 5). Again, Rachel takes nothing since Ralph is living.
Additional GuidelinesAdopted children will normally take a child's full intestate share from the estates of both the adoptive parents and, in some states, from the estates of the natural (biological) parents as well.
A child born after the death of a parent will also take a child's full intestate share from the estate of the deceased parent.
llegitimate children in most states will take a child's full intestate share from the mother's estate, but not the father's estate unless: / the father has acknowledged the child as his, / a court has ruled him to be the father, or / the father married the mother after the child was born.
Additional GuidelinesAdopted children will normally take a child's full intestate share from the estates of both the adoptive parents and, in some states, from the estates of the natural (biological) parents as well.
A child born after the death of a parent will also take a child's full intestate share from the estate of the deceased parent.
llegitimate children in most states will take a child's full intestate share from the mother's estate, but not the father's estate unless: / the father has acknowledged the child as his, / a court has ruled him to be the father, or / the father married the mother after the child was born.