My Husband Died & Left No Legal Will

by John Cromwell

A poll taken in December 2009 suggested that only 35 percent of Americans have a will. Many families may therefore have to face losing a husband and having to deal with the estate without the benefit of a will. Such a person is said to have died intestate, and certain state laws apply. If the value of your husband's property exceeds his funeral expenses and his enforceable debts, the remainder of his property is subject to a state-mandated distribution scheme. Each state has its own intestacy code, which defines how estates with no will are distributed.

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Uniform Probate Code

Although each state has its own intestacy code, many states' laws have been shaped by the Uniform Probate Code. The UPC has been adopted outright by 17 states and has been endorsed by the American Bar Association. Many states' laws will be similar to the UPC. However, if you are dealing with intestacy issues, it important to review the laws specific to your state.

Estate Defined

The UPC defines the decedent’s estate as the value of everything the decedent owned when he died minus funeral expenses, administrative costs, and enforceable debts accumulated by the decedent. Excluded from the estate is certain property that the decedent owned during his life but automatically transferred ownership when he died, for example, a home that you and your husband owned jointly, or a life insurance policy with a named beneficiary.

Spouse's Share

Once the estate is established, the next step is to divide the remaining assets. How much you get depends on whether your deceased husband has surviving parents and children. Depending on the circumstances, you can typically get anywhere from half of the estate to the entire estate if there are no surviving parents or children. Be sure to check your own state's probate statutes to determine exactly how much you would receive.

Community Property Exception

Community property is a function of state law, which divides a married couple’s property into categories when a spouse dies. This system is currently used in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Under community property theory, spouses have equal ownership rights over all property acquired during the marriage. All property acquired during the marriage is classified as “community property,” while all other assets are divided between the spouses. The UPC excludes community property in states where this system is used. When a husband dies, his spouse would get one half of the community property. Specific community property rules are defined by each state.