When it comes to the rules of intestacy and the surviving spouse, the surviving spouse is omitted. This is only because there is no blood relationship between the decedent and the surviving spouse.
However in all jurisdictions, the surviving spouse takes a priority , in both order and amount, as an intestate heir. Regarding a former spouse, a former spouse does not inherit any part of the decedent’s intestate estate. Just to clarify, a legal marriage can terminate in only 3 different ways: 1) annulment, 2) divorce, or 3) death. There is a small exception that is carved out for the purposes of intestate succession; a spouse remains a spouse during a divorce proceeding until the court enters a final decree of divorce. Therefore, if a married person dies intestate during a divorce proceeding, the surviving spouse will inherit the same share of the intestate estate as if the couple had remained married and together.
Pursuant to the Uniform Probate Code Section 2-102:
The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if: (A) no descendant or parent of the decedent survives the decedent; or (B) all of the decedent’s surviving descendents are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
Let’s break these legal terms into language that everyone can understand. For section (1)(A), it is very simple; the surviving spouse takes the entire estate if there are no children of the couple or if the parents of the decedent do not outlive the decedent. Here is an example: Paul is married to Julie. Paul and Julie do not have any children and Paul’s parents have both passed away. Paul passes away leaving Julie all alone. Therefore, Julie would take Paul’s entire intestate estate.
Let’s break down (1)(B) as this tends to be a little more complex and the wording throws a lot of people off. The surviving spouse receives the entire intestate estate if all of the decedent’s surviving children are also the children of the surviving spouse and the surviving spouse does not have a child outside of the marriage who survives the decedent. Here is an example to help clarify: Lucy and Ricky are married and have 1 child together, named Ricky Jr. Lucy also had another child before marrying Ricky and this child’s name of Lindsey. Lindsey passed away at the age of 5. Ricky passed away 4 years after Lindsey passed away. Therefore, Ricky Jr. is a descendant of both Lucy and Ricky and Lucy does not have a child outside of the marriage with Ricky, so Lucy is entitled to receive the entire intestate estate of Ricky.
The Uniform Probate Code also prepares for other instances in Section 2-102. Under Subsection (2) the UPC states, “The intestate share of a decedent’s surviving spouse is the first $300,00, plus three/fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
Basically, subsection (2) states the surviving spouse gets the first $300,000 of the intestate estate. Then receives 75% of the remaining intestate estate and the surviving parent of the decedent receives 25% of the intestate estate, since there are no children involved. For example, Jamie and Suzy are married and do not have children. Suzy passes away, but Suzy’s mother is still alive. Suzy’s intestate estate is valued at $1.3 million. Jamie would receive $3000,000 first, leaving the estate with $1 million. Jamie would now take another $750,000 or the 75% which is the surviving spouse share and Suzy’s mother receives $250,000 the 25% share owed to the surviving parent.
Subsection (3) of UPC Section 2-102 states “The intestate share of a decedent’s surviving spouse is the first $225,000, plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.”
Again, let’s break this down into simple English. The surviving spouse is entitled to the first $225,000 plus 1/2 of the balance if the decedent and surviving spouse have child(ren) and the surviving spouse also has a child(ren) which are not those of the decedent. Here is an example to help clarify this more: Jason and Monica are married and have 2 children of the marriage. Before Monica married Jason, she had 1 child with another person. Jason passed away, leaving Monica with their 2 children and her 1 child. Jason’s estate is valued at $725,000. Monica will receive $225,000 first, leaving the remaining value of the estate at $500,000. Then Monica is entitled to another $250,000 which is half of the remaining balance of the estate. The final remaining $250,000 goes to those left in the line of intestacy.
Finally under subsection (4) of UPC Section 2-102 states “The intestate share of a decedent’s surviving spouse is the first $150,000, plus 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.”
Subsection (4), in easier words states that the surviving spouse is entitled to $150,000 and then half of the remaining balance of the intestate estate when the decedent has children that are not of the surviving spouse. For example: Mike and Kelly are married with 2 children. Before Mike married Kelly, he had a child with another person. Mike passes away. Kelly is left with her 2 children and Mike’s other child. Mike’s estate is valued at $650,000. Kelly would take $150,000 first and then half of the remaining $500,000, which leaves her with an additional $250,000. The remaining $250,000 would go to Mike’s other child from before he married Kelly.
The purpose of the subsections is to ensure that those that those descendants who are not of the surviving spouse are provided with something as it is common conception that the surviving spouse will only provide for his/her own children or family members.
All of this can be avoided with the drafting and execution of a proper Legacy Plan. Contact Campanile Law, LLC. today to begin your Legacy Planning journey today.