Statutory schemes exist in each state directing the transfer of property at death in the absence of a will. These statutes are called intestacy statutes and are designed to direct the probate (as opposed to the non-probate) estate. Essentially, they are default provisions and, as such, are designed by the legislatures of the various states to approximate what people would generally want to happen in the absence of a will. Each state has different intestate statutes – perhaps reflecting the differences in the perception of what citizens would want to happen in the absence of a will.
It is important to remember that the intestacy statutes direct the probate estate in two separate circumstances: (i) when there is no will and (ii) when there is a will but it fails to dispose of all of the property either because part of the will is held invalid or because the existing will is challenged and set aside in totality.
Generally, the law of the state where the person was domiciled at death governs the disposition of the property. There is one large exception, however, related to the disposition of real property. Generally, real estate is governed by the state where the real property is located. The state of domicile may also govern the disposition of personal property if such personal property is usually located in the state for example, farm equipment associated with a particular farm). There is an interesting Maryland Attorney General’s opinion related to whether Maryland could tax the personal property of a Maryland domiciliary when the personal property was never located within Maryland. In this case, Gertrude Stein – a Maryland domiciliary – died with very valuable personal property (artwork) in her possession. The artwork, however, was always located in Paris where Gertrude Stein lived most of her life and none of it ever was brought into the State of Maryland. The Attorney General held, under those circumstances, that the artwork was not taxable by Maryland but at its situs.
Under the Uniform Probate Code and under Maryland law, the intestacy statute begins by first carving out the statutory share for the surviving spouse. Under Uniform Probate Code § 2-102 (amended 2008), the intestacy share for the surviving spouse the entire estate if (i) no descendant or parent of the decedent survives the decedent; or (ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent. Implicit in all intestate share statutes are policy considerations reflecting the jurisdiction’s various operating assumptions. Therefore, it is instructive to compare the Uniform Probate Code with the Maryland statutory scheme.
Uniform Probate Code: § 2-102. Share of Spouse.
The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the decedent; or
(ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first [$ 300,000], 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;
(3) 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;
(4) 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.
§ 2-103. Share of Heirs Other Than Surviving Spouse.
Any part of the intestate estate not passing to the decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(1) to the decedent’s descendants by representation;
(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent if only one survives;
(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
(4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.
(5) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives on the side with one or more surviving members in the manner described in paragraph (4).
Maryland Estates and Trusts Article:
§ 3-102. Share of surviving spouse.
(a) General: The share of a surviving spouse shall be as provided in this section.
(b) Surviving minor child: If there is a surviving minor child, the share shall be one-half.
(c) 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.
(d) No surviving issue, but surviving parent: If there is no surviving issue but a surviving parent, the share shall be the first $ 15,000 plus one-half of the residue.
(e) No surviving issue or parent: If there is no surviving issue or parent, the share shall be the whole estate.
(f) Calculation of net estate: For the purposes of this section, the net estate shall be calculated without a deduction for the tax as defined in § 7-308 of the Tax-General Article.
§ 3-103. Division among surviving issue.
The net estate, exclusive of the share of the surviving spouse, or the entire net estate if there is no surviving spouse, shall be divided equally among the surviving issue, by representation as defined in § 1-210 of this Article.
§ 3-104. Distribution when there is no surviving issue.
(a) In general: If there is no surviving issue the net estate exclusive of the share of the surviving spouse, or the entire net estate if there is no surviving spouse, shall be distributed by the personal representative pursuant to the provisions of this section.
(b) Parents and their issue: Subject to § § 3-111 and 3-112 of this subtitle, it shall be distributed to the surviving parents equally, or if only one parent survives, to the survivor; or if neither parent survives, to the issue of the parents, by representation.
(c) Grandparents and their issue: If there is no surviving parent or issue of a parent, it shall be distributed one half to the surviving paternal grandparents equally, or if only one paternal grandparent survives, to the survivor, or if neither paternal grandparent survives, to the issue of the paternal grandparents, by representation, and one half to the surviving maternal grandparents equally, or if only one maternal grandparent survives, to the survivor, or if neither maternal grandparent survives, to the issue of the maternal grandparents, by representation. In the event that neither of one pair of grandparents and none of the issue of either of that pair survives, the one half share applicable shall be distributed to the other pair of grandparents, the survivor of them or the issue of either of them, in the same manner as prescribed for their half share
(d) Great-grandparents and their issue: If there is no surviving parent or issue of a parent, or surviving grandparent or issue of a grandparent, it shall be distributed one quarter to each pair of great-grandparents equally or all to the survivor, or if neither survives, all to the issue of either or of both of that pair of great-grandparents, by representation. In the event that neither member of a pair of great-grandparents nor any issue of either of that pair survives, the quarter share applicable shall be distributed equally among the remaining pairs of great-grandparents or the survivor of a pair or issue of either of a pair of great-grandparents, in the same manner as prescribed for a quarter share.
(e) No surviving blood relative: If there is no surviving blood relative entitled to inherit under this section, it shall be divided into as many equal shares as there are stepchildren of the decedent who survive the decedent and stepchildren of the decedent who did not survive the decedent but of whom issue did survive the decedent. Each stepchild of the decedent who did survive the decedent shall receive one share and the issue of each stepchild of the decedent who did not survive the decedent but of whom issue did survive the decedent shall receive one share apportioned by applying the pattern of representation set forth in § 1-210. As used in this subsection, “stepchild” shall mean the child of any spouse of the decedent if such spouse was not divorced from the decedent.
Restatement (Third) of Property: Donative Transfers § 2.2 (1999) states that an intestate decedent’s surviving spouse takes a share of the intestate estate as provided by statute. Although the exact share differs among the states, it is not uncommon for the spouse to take the entire intestate estate if the decedent leaves no surviving descendants or parents and, in some states, if the decedent also leaves no other specified relative such as a descendant of a parent. Id.
Experience would tend to argue against the Maryland approach. It is doubtful that most people want their spouses to receive only a portion of the estate if all of the surviving children are products of the marriage. Under those circumstances, people usually want everything to go to the spouse or, in the alternative, to be available to the spouse for his or her lifetime with surviving children.
