You might have heard a lawyer say that you should get a will. You should. But let’s say that you don’t. In that case, what happens to your property when you die?
First off, are you married? If so, we need to figure out whether your property is separate property or marital property (owned by both spouses). Generally, most property in a marriage is marital property and the spouses own it in what the law calls a “tenancy by the entirety.” That means as soon as one spouse dies the other spouse automatically owns the property.
While most property in a marriage is marital property, couples often have some separate property. For example, one spouse may have inherited property from another family member and never used the property in such a way that it would become marital property. So, what happens to a person’s separate property when he or she dies?
If you die without a will, the court will distribute your separate property according to the law of “intestacy.” Under intestacy law, if you have a spouse and no children, your spouse will get everything. If you have a spouse and one child, each of them will get 50%. If you have additional children, your spouse will get 1/3 and your children will divide whatever is left. What happens if one of your children predeceased you? That child’s share will go to your child’s descendants. What happens if you don’t have a spouse or children? Your parents will get your property.
While this is the basic rule, there are many exceptions and unique situations. For example, if you’ve been married for nine years or more, the surviving spouse can claim a 40% “elective share.” The surviving spouse may also be able to claim a homestead allowance and a year’s support allowance. These exceptions are why it’s always good to talk to an attorney about your situation and get a will.