If a spouse dies and there’s no Will, does everything goes to the living spouse?

Asked on June 2, 2012 under Estate Planning, South Carolina


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

First of all, when somone dies without a Will, they are said to have died "intestate". Accordingly, the intestacy or "succession" laws of the state in which they were domiciled as of the date of their death will control. If there are no children (including grandchildren), then in that case the estate will pass entirely to the surviving spouse (subject to the claims of creditors). If, however, the deceased had children (or grandchildren), then the estate will be split. Just exactly how the split will be made depends on specific state law. Some states will divide the assets 1/2 to the surviving spouse and 1/2 half to the children; other states give 1/3 to the surviving spouse and 2/3 to the children; still others have a set up front amount to a spouse and then then a split. In NY for example, a surviving spouse gets the first $50,000 and the remainder of the assets are split 1/2 to the survivng spouse and 1/2 to the children.

At this point, you should consult directly with a probate attorney in your area.

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