Many people assume that if they die while married, their spouse and children will automatically inherit everything. However, this belief is rooted in state laws that apply when someone dies without a will—referred to as dying "intestate." In this situation, inheritance is determined by state-specific rules, which often divide assets between the spouse and children (or possibly even parents, depending on the circumstances). The exact portion your spouse will receive depends on your state's law.

While this might seem straightforward, relying solely on intestacy laws can lead to unexpected and unfavorable results in many common family situations. Here are some examples of how the law may not work as you'd expect.

Complex Family Structures and Intestate Inheritance

Most state intestacy laws are designed for traditional family structures—married couples with biological children. However, the reality is that modern families come in all shapes and sizes. One analysis found there are over 50 different family structures in the U.S., and approximately 40% of all marriages involve at least one spouse who has been remarried. With millions of children living in blended families due to adoption and stepfamilies, the law often doesn't account for these dynamics. This can result in unintended outcomes.

For example, stepchildren that you've raised but not legally adopted may receive nothing, while an estranged spouse could end up inheriting part of your estate.

Real-Life Example: Blended Families and Intestate Law

Consider Carey and Blake, who each have a child from a previous relationship—Carey's daughter Rose and Blake's son Whitley. They also have a child together, Penny. While Carey and Blake treat all three children equally, if Carey dies without a will or trust, state intestacy law will determine who inherits her assets. Blake, Rose, and Penny would inherit, but Whitley, despite being raised as a son, would receive nothing. This could be avoided with a properly crafted estate plan that clearly states Carey's wishes.

Probate and Public Proceedings

Another challenge with intestacy is that asset transfers do not happen automatically. Without a will, your family must go through probate court to distribute your estate. This process can be lengthy, expensive, and public, exposing details about your family and finances that you may prefer to keep private. To avoid this, many people create a revocable living trust, which allows for a smoother, private transfer of assets.

Guardianship for Minor Children

If both parents of minor children pass away without a will, the courts will appoint a legal guardian for the children. Contrary to what some may think, children do not automatically go to a godparent or grandparent, even if that was the parents' wish. Instead, a judge makes this decision, which may not align with what you would have chosen. By creating a will, you can ensure your preference for a guardian is communicated and legally recognized.

Separation and Divorce Complications

If you are separated but not yet divorced, intestacy laws can still treat your estranged spouse as your legal spouse, meaning they could inherit part or all of your estate. Even if you attempt to disinherit them in a will, state laws may still entitle them to a share of your assets. If your divorce is pending, it's essential to consult both a divorce attorney and an estate planning attorney to understand your options and protect your assets.

Protect Your Family with Proper Estate Planning

The best way to ensure that your spouse, children, and loved ones are protected and that your wishes are honored is through a comprehensive estate plan. Don't leave your family's future to state laws—talk to a qualified estate planning attorney today to safeguard your hard-earned assets and provide for your loved ones.

Contact us now to create or update your estate plan and take control of your family's future.