Throughout human history, the question of what to do with a deceased person’s assets upon her death has had to be addressed. Our inheritance laws were initially based on English law, sometimes referred to as old common law. Not everyone stood to inherit from the death of a relative, while some inherited more than others. Today, many state laws are still based in part on how the disbursement of an inheritance was traditionally addressed.
Under traditional law, the surviving spouse was not entitled to inherit any land from the deceased spouse. The rationale was that only a blood relative of the deceased could be an heir to land, and a deceased spouse was not a blood relative. However, surviving spouses could use all or a portion of the deceased spouse’s land. A widow was entitled to use one-third of her deceased husband’s land for as long as the widow lived. By contrast, a widower was entitled to use his wife’s entire interest in the land for the rest of his life, but only if the widower fathered a child with his deceased wife. Today, all states provide that a surviving spouse, regardless of gender, inherits at least a portion of the decedent’s interest in land if the decedent died without a will, trust or other probate-avoidance device.
Surviving Spouse and Personal Property
Unlike with land, a widow could inherit all or a portion of her deceased husband’s interest in personal property, depending on how many descendants the husband left. A widower, by contrast, did not inherit from his wife because he already acquired ownership of his wife’s personal property automatically when the couple married. As with land, modern law usually provides that the surviving spouse inherits the deceased spouse’s personal property unless a will or trust directs otherwise.
A descendant is a person’s child, grandchild, great-grandchild, and so on, whose existence can be traced to a specific individual, called an ancestor. Under traditional law, a person’s descendants would inherit all of the decedent’s property not otherwise distributed to the decedent’s spouse if the decedent died without a will, trust or other probate-avoidance method. If the decedent left no spouse, the descendants would inherit all of his property. If there was more than one descendant, the property was usually divided among the decedent’s children. Modern law tends to follow the traditional distribution with respect to descendants, but states vary as to who inherits property if a descendant died before the decedent and the descendant left at least one surviving child.
Parents and Siblings
If a person died without a will or trust, and left no surviving spouse or descendants, the decedent’s parents would traditionally inherit the decedent’s property. If both of the decedent’s parents were alive, the two parents would inherit the property in equal shares. If the decedent was not survived by either parent, the person’s siblings would inherit the property in equal shares. Jurisdictions were, and still are, split as to how the deceased person’s property is divided if the person died with one surviving parent and with siblings. In some jurisdictions, the surviving parent would inherit all of the property. In other jurisdictions, the parent would inherit half and the other half would be divided equally among the decedent’s siblings.
Grandparents and More Distant Relatives
If the decedent died without a will or trust, and was not survived by a spouse, parent or sibling, the person’s grandparents would inherit the property equally. If the person was not survived by any grandparents, then more distant relatives, such as various degrees of cousins, would inherit the property. Determining the relationship of these distant relatives, and locating them, could be an expensive and time-consuming process. In fact, it was not uncommon for businesses to specialize in making these determinations, often for a percentage of the total inheritance. Modernly, many states continue to follow the traditional inheritance model as it pertains to grandparents and more distant relatives. Variation does exist, however, respecting the order in which more distant family members inherit.
References & Resources
- Examples and Explanations: Wills, Trusts, and Estates (3rd Edition); Gerry Beyer
- Photos.com/Photos.com/Getty Images