What is Intestacy? Part III: Priority

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.

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About Chris Guest

I am a trust and estate planning attorney working in the Washington, DC metro area. I offer comprehensive estate planning, trust administration, probate services and general business counseling for accountants, attorneys, business owners, consultants, federal and local government employees, retirees, other business professionals and other individuals.
This entry was posted in Intestate, Order of Priority, Probate. Bookmark the permalink.

7 Responses to What is Intestacy? Part III: Priority

  1. Cherrie Tomasovic says:

    In Virginia do the children of the second wife, no blood relation to the deceased, receive any portion of the estate, and what percentage, if any? Is it possible for the second wife to bypass the intestate deceased spouse’s adult child to give the inheritance to her own adult child? If the deceased had dementia, or was incapacitated shortly before his death, would a will hold up in court if the second spouse was able to persuade the deceased to sign something while he was in the last stages of his terminal illness? Thank You.

  2. Chris Guest says:

    Cherrie,

    You are asking some pretty high level questions and you should talk with an attorney

    1) But, generally, under intestate succession, children of the second wife with no blood relation to the deceased do not take anything from the estate of the deceased in an intestate estate matter.

    2) I am not sure I understand your question about by-passing so I can’t answer that question.

    3) The will could or couldn’t be valid but depends on a number of fact specific matters that can shift the answer any number of ways. So, I can’t answer that one either.

    Chris

    • Cherrie Tomasovic says:

      Can the second spouse of a deceased person without a will in Virginia keep the adult child of the deceased from inheriting part of his estate? How would the estate be divided? Thank you.

  3. Chris Guest says:

    Per VA Code Section 64.1-1.
    First. 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 language: if their are children that are not the surviving spouses children but are children of the decedent then all the decedent’s children will split 2/3rds of the estate and the surviving spouse gets 1/3.

  4. Rob Cox says:

    Chris – I was recently contacted by a genealogy research firm saying I may be a maternal second cousin of a deceased man from Virginia who died and left no will. After some research, I can confirm this to be true. He died over 14 months ago. Is there any statute of limitations, and what would be the process I need to pursue to see if I qualify as an heir? Thank you for your newsletter topics!

    • Chris Guest says:

      There is no statue of limitations for claiming assets though based on intestate priority order you might not be entitled to anything. You need to go to the Register of Wills office of the county (you might be able to get it on-line but that depends on the county) where your second cousin died and find out who the personal representative is. Then contact the personal representative to see what has happened with the estate and what you might be entitled to from the estate. I am hazarding a guess that the genealogy firm would give this information to you for a fee but you could try them for that information, too.

  5. Pingback: The Driverless Car and Estate Planning | VA Estate Planner

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