Who Gets What in Intestacy?

We frequently advise clients about the importance of having a will to avoid the effects of the “intestacy” laws, which determine how a decedent’s estate is distributed when there is no will. But what exactly does the Pennsylvania intestacy law provide and is its application really that bad? Following is a summary of what the intestacy laws provide in a few representative cases.

What is a surviving spouse entitled to?
If the decedent has no surviving parents and no surviving issue (“issue” means children, grandchildren, great-grandchildren, etc.), then the surviving spouse gets the whole estate of the decedent.

If the decedent has no surviving issue, but he has one or both of his parents surviving, the spouse gets the first $30,000, plus half the balance of the estate. The remaining one half goes to the surviving parent(s). Do most newlyweds expect that? Probably not. (Although they are probably not thinking about their mortality at all.) Interestingly, the $30,000 that goes “off the top” to the surviving spouse was once $20,000. It was increased to $30,000 in 1980 to reflect an “inflationary trend,” but there has not been a similar inflation adjustment since then (thirty-six years).

Conversely, if there are surviving issue of the decedent all of whom are issue of the surviving spouse then, again, the surviving spouse gets the first $30,000.00 and one half of the balance of the estate. In this case, the remaining balance of the estate goes to the issue of the decedent. As an aside, what if the issue of the decedent are minors? The “legal” approach is for the Orphans Court to appoint a guardian to hold the inherited funds for the minor.

Finally, if there is a surviving spouse, but there are issue of the decedent that are not issue of the surviving spouse (in other words the decedent’s issue are step-children of the surviving spouse or their issue), then the surviving spouse gets one half of the estate and the decedent’s issue get the balance. There is no spousal ”$30,000 off the top” in this scenario.

What if there is no surviving spouse?

First, the decedent’s estate would go to the decedent’s issue (again, children, grand-children, etc.). If there are no issue, then it goes to the decedent’s parents. If there is no spouse, issue or parent the estate passes to siblings, nieces and nephews. If none of the above survive the decedent, then the grandparents are next, thereafter the aunts, uncles and cousins would figure into the distribution. If somehow a person dies without a spouse, issue, parent, sibling, niece (or niece’s issue), nephew (or nephew’s issue), grandparent, aunt, uncle, cousin, second cousin or third cousin—the estate goes to the Commonwealth of Pennsylvania. As an aside, a person or entity that receives property under a will is generally called a beneficiary. The recipient of property under the intestacy law, is called an “heir.” The old legal adage that “there is always an heir” reflects the fact that, under intestacy, if no living person is available to take an estate, it will pass to the Commonwealth.

In what proportions do the heirs take their share of the estate?

It is not enough just to identify who gets the estate under intestacy. It also has to be determined who gets what fraction. When all the recipients are of the “same degree”, then the arithmetic is simple. For example, if a mother passes with a surviving son and a surviving daughter, each child would be entitled to one half of the net estate. However, if there are heirs of different degrees, for example if in the prior example the son predeceased the mother but left two children of his own, one-half of the estate would pass to the decedent’s daughter and one-half would pass to the two grandchildren to be divided equally.

If any of the above concerns, confuses or bores you to the point you do not want to understand it, you have one more reason to have a will drafted. (Other good reasons include possible tax savings and providing for the guardian of a minor child.)


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