This is the third in a series of posts on intestacy and will deal with priority of intestacy. Click here for the first part (Introduction to Intestacy) and click here for the second part (The Assets).
Since the decedent died without a will, there is no direction over who should get what assets from the decedent. To avoid confusion and fighting over the assets the states have created a priority system. The order of priority in which beneficiaries inherit assets under intestate statues are governed by the familial relationship of the beneficiary to the decedent. In other words, family members related closer to the decedent generally get a share and cut-off those family members not as closely related. But, every state has a different view on this order or closeness. Intestate statutes also dictate what percentage a beneficiary will receive from the decedent.
The best way to demonstrate what I am talking about is to demonstrate how each local jurisdiction (Virginia, the District of Columbia and Maryland) divides out a decedent’s estate that died without a will. In our case, the decedent was a husband that was on his second marriage and has children (one from this marriage and another from the previous marriage). To further complicate the scenario, I say the children were not minors. The probate estate, after taxes were paid and debts paid was $100,000
- Virginia: It is governed by § Title 64.1, Wills and Decedents’ Estates, Chapter 1, Descent and Distribution) and it reads:
To the surviving spouse of the intestate, unless the intestate is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case two-thirds of such estate shall pass to all the intestate’s children and their descendants and the remaining one-third of such estate shall pass to the intestate’s surviving spouse.
In plain English, the second wife will only receive one-third (1/3) of the husband’s probate estate and the remaining two-thirds (2/3) will be split evenly between the children. In this case, the wife gets $33,333.
If there were no children from a prior marriage, the wife would have inherited everything and received the entire $100,000.
- Maryland: It is governed by Maryland Code: Estate and Trusts, Title 3. Intestate Succession and Statutory Shares and it reads:
No surviving minor child, but surviving issue.- If there is no surviving minor child, but there is surviving issue, the share shall be the first $15,000 plus one-half of the residue.
In plain English, the second wife will receive the first $15,000 of the estate plus one-half (1/2) of the husband’s probate estate. The children split the remaining half. In this case, the wife received $57, 500.
If the children were minors, the wife would have received only one-half (1/2) of the husband’s probate estate or $50,000.
- District of Columbia: It is governed by Division III, Decedents’ Estates and Fiduciary Relations, Title 19, Descent and Distribution and it reads:
Share of spouse or domestic partner.- One-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse or surviving domestic partner.
In plain English, it means the second wife will receive one-half (1/2) of the husband’s probate estate. The children split the remaining half. In this case, the wife receives $50,000.
Three jurisdictions next to each other produced three different results.
One issue to also note is that all three jurisdictions do not make any difference between a child that is only half blood or whole blood from the decedent. If a child is related to the decedent, they will inherit a portion of the estate. And it is easy to see that results can vary by the jurisdiction, age of the children and relationship to the decedent.