Intestate Succession: Who Gets What?

Table of Contents:

  1. Who Receives a Piece of the Inheritance?
  2. How Much Does Each Person Get? What is Per Stirpes?
  3. What Is Inherited?: Real vs. Personal Property
  4. What Happens When…
  5. What Can We Do to Avoid Intestacy?

Who Receives a Piece of the Inheritance?

Intestate succession is the process by which a person inherits from an estate when a decedent (a deceased person) does not have a will. The specific classes of people or the ways they are ranked may vary from state to state, but generally, intestacy provides a hierarchy through which relatives inherit from an estate.

In Pennsylvania, the hierarchy is governed by a statute that sets out who is entitled to inherit, and in what amounts they can inherit.* The law provides that a decedent’s property goes first to their surviving spouse. If the departed did not have a surviving spouse, but had children, then the property goes to the children (or issue) of the deceased. When a decedent had both a surviving spouse and children, there are separate distribution rules based on whether all of the surviving children were shared with their spouse or if the estate holder had one or more children with another person.

How Much Does Each Person Get? What is Per Stirpes?

Children are the next class of beneficiaries entitled to inherit from an estate. Words like per stirpes and by representation are used in the context of defining the appropriate shares for specific heirs to an estate. What it means in practice, is that those closest in relation to the decedent determines how the shares of their estate will be allocated.*  For example, if a person passes away with three children, their estate is broken into three equal shares. However, if one of those children has passed away, but had children of their own, the estate would still be broken into three pieces, but the aforementioned grandchildren would share their parent’s 1/3 share.

In identifying the proper heirs to an estate, marriage and divorce records are as important as birth, death, and adoption certificates. The term “issue” refers to the biological and adoptive children of a decedent, which can frequently complicate the family tree.* Consider a scenario where a grandmother legally adopts her granddaughter. When said grandmother passes away, the granddaughter, and her mother (the estate holder’s daughter), will share equally in the estate. The adoption changed the granddaughter’s position on the family tree to that of a child or a sibling to her biological mother.*


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What Is Inherited?: Real vs. Personal Property

When thinking about what property can be inherited in an estate, many beneficiaries are surprised to learn that their potential inheritance is calculated after the payment of taxes, fees, and other costs of administration. Specifically, the state and/or federal requirements for inheritance and/or estate taxes, where applicable, and claims of the deceased’s creditors should always be satisfied prior to distribution.

When it comes to property which can be inherited, all personal property owned by the departed at the time of their death, and any interest in real estate that they retained following their death, can be passed through intestacy. Real property can be owned by a decedent alone, or with their surviving spouse, or with other parties. Deeds to real property supersede the division of property by intestacy, so the way that a property is titled is important to identifying what property belongs to the estate. For example, in Pennsylvania, if spouses own property together, there is an implied principle of survivorship which operates to vest ownership in the surviving spouse. However, if an estate holder owned property with a child, friend, or business partner, or was not legally married, absent language to the contrary, there are no implied survivorship principles and the estate inherits interest in that property.

What Happens When…

Much like any default rule, intestacy can present many challenges for families. For instance, in the example above, where a parent passes away with 3 children, imagine that one of them has moved across the country. Intestacy requires coordinating with each person to get the necessary signatures and these requirements can vary by state. Additionally, if we go further and imagine that one of the children has passed away, the added burden of coordinating with that person’s heirs (and raising their estate) may slow down the process significantly. Finally, the default rules are concerned with biology rather than relationship. That means that estranged family members remain entitled to “their share” regardless of the nature of their relationship, or lack thereof, with the deceased.

What Can We Do to Avoid Intestacy?

An estate plan supersedes the default rule and removes the need to worry about the unforeseen implications of intestacy. A carefully drafted will can outline exactly how, and to whom, your personal property should be distributed. Considering our intricate and often complex family relationships, having an estate plan allows you to control the narrative, and structure your legacy the best way you see fit.  Consult a lawyer about your estate planning goals and take comfort in knowing that you have structured your estate for a seamless transition to your heirs.

* Anonymous, (2019). Chapter 21 – Intestate Succession. PA General Assembly. Retrieved October, 2019