Intestacy

The surviving spouse’s share

In Minnesota, for example, the surviving spouse receives the entire intestate estate if either of these conditions applies. Other states differ.

• No descendant of the deceased person survives.
• All surviving descendants of the deceased person are also the spouse’s descendants, and the spouse has no other descendant surviving the deceased person.

In Minnesota, for example, the spouse instead receives the first $225,000 plus half the remaining intestate estate if either of the following conditions applies. Other states differ.

• All surviving descendants of the deceased person are also the spouse’s descendants, but the spouse has another surviving descendant.
• At least one surviving descendant of the deceased person is not the spouse’s descendant.

These Minnesota shares apply to the intestate estate, not all property owned at death.

The inheritance order for other relatives

In Minnesota, for example, the portion not passing to a surviving spouse, or the entire intestate estate if there is no surviving spouse, passes through the following order of surviving relatives. Other states differ.

1. The deceased person’s descendants, by representation.
2. If no descendant survives, the parents equally if both survive, or the surviving parent.
3. If no descendant or parent survives, the descendants of either parent, by representation.
4. If no descendant, parent or descendant of a parent survives, the grandparents or their descendants under the family branch rules below.
5. If none of those relatives survives, the next of kin in equal degree. Among collateral relatives in equal degree claiming through different ancestors, those claiming through the nearer ancestor exclude those claiming through a more remote ancestor.

For the Minnesota grandparent stage, half passes to the paternal grandparents equally if both survive, or to the surviving paternal grandparent. If neither survives, their descendants take that half by representation.

The maternal half follows the same pattern. If one side has no surviving grandparent or descendant of a grandparent, the entire estate passes to qualifying relatives on the other side in that manner.

In Minnesota, for example, representation among the deceased person’s descendants starts with one share for each surviving child and each deceased child who left descendants surviving the deceased person. Other states differ.

Each surviving child receives one share. Each deceased child’s share is divided among that child’s descendants in the same manner.

Inheritance remains subject to administration

In Minnesota, for example, intestate inheritance remains subject to statutory family protections, creditors’ rights, the surviving spouse’s elective share and estate administration. Other states differ.

Disclaimer, renunciation or other circumstances affecting inheritance may substitute other recipients. Being an heir does not mean receiving an immediate, unrestricted distribution.

Two related terms

Personal representative. In Minnesota, for example, this is the fiduciary who settles and distributes the estate under any probated, effective will and applicable law, acting prudently after appointment by the court or registrar, qualification and issuance of letters. Other states differ.

Codicil. In Minnesota, for example, a codicil is treated as part of the will, and “will” includes an instrument that only appoints an executor or revokes or revises another will. Other states differ.

A perspective on family and asset locations

"When they have children or grandchildren who are potentially citizens outside of the country or live outside of the country, the need to see things from a global perspective is of high importance and planning around who owns what and where those assets are held."

Common questions