Inheritance Laws Pertaining to First-Born or Oldest Children

By Matthew Derrringer

No state has laws that grant favor to a first-born child in an inheritance situation. Although this tradition may have been the way of things in historic times, modern laws usually treat all heirs equally, regardless of their birth order. While there are slight variations in inheritance laws, depending on the state, being a first-born child does not get you special treatment.

Testate and Intestate Estates

If a person dies and has left behind a valid will, that person is said to have died testate. When a person dies without a will, he is said to have died intestate. The difference between the two can have substantial consequences for an heir or descendant. While you can usually dictate almost any terms of an estate distribution by will, each state has laws that govern distribution of estates for those who die without a will, or intestate.

Provisions in a Will

The testator, or person who leaves behind a valid will, is free to show favor to any beneficiary, whether that person is a relative or not. The most common restriction is that testators in most states cannot completely disinherit minor children. Beyond that, they can leave any part of their estate to their first-born children as they choose.

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Intestate Succession

When a person dies without a will, the decisions about how to distribute that person’s estate are subject to state law, rather than the wishes of the deceased. Every state has intestate succession laws that specifically detail who will receive a portion of the decedent's estate and how much that will be. The immediate heirs under this type of estate distribution are usually the surviving spouse, if any, and the decedent’s children. Other relatives come into the picture only if none of these individuals have survived the deceased. If the decedent leaves behind a surviving spouse and only minor children, most states will give the entire estate to the surviving spouse. Leaving behind a surviving spouse and adult children results in the estate being divided up pursuant to the priority of heirs as set by each state's intestate laws.

Splitting up the Estate

When it comes to dividing the decedent’s estate, there are two approaches. Per capita distribution means the entirety of the estate will be divided equally among the people still alive at the time of the decedent’s death, such as children. If a decedent has a child who predeceased him, that child’s progeny would not get a share of the estate as it would be divided among only the living children. Per stirpes distribution gives an equal share of the estate to each living child or to a predeceased child’s progeny in place of that child. Neither of these approaches to distributing estates grants special favor to a first-born child.

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The Inheritance Hierarchy Without a Will in New York State



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Arizona Intestacy Laws & Distribution

It’s human nature to avoid thinking about death, so it’s not surprising that more than 70 percent of Americans die without a will each year, according to Catholic Relief Services. A will specifically states your wishes regarding the distribution of your estate. However, if you die intestate, or without a will, the state has the final word. When this occurs, your heirs may inherit your property contrary to your wishes.

The Hierarchy of Heirs

The hierarchy of heirs is determined by laws that govern inheritance in each state. Some states have adopted the Uniform Probate Code and have based their inheritance laws on its recommendations. The Uniform Probate Code provides rules concerning who is entitled to inherit a deceased relative's property/estate if no last will and testament was executed. Although laws may vary somewhat by state, typically the hierarchy of heirs is intended to divide the estate fairly among surviving family members.

Dying Without a Will in Delaware

You may have preferences as to which family member or friend receives your property after your death and those wishes are typically expressed through a will. However, if you die without a will, called dying intestate, state law will decide how your property is distributed. State law also dictates the process by which your property is distributed, which is known as probate. Just like every other state, Delaware has intestacy and probate laws in case one of its residents dies without a will.

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