By Pedro Bianco
En esta noticia
When a person dies in the United States, the fate of their assets depends, first of all, whether they left a valid will or not. If there is one, it is called testate succession; if not, intestate succession, and it is the law that decides who inherits.
There is also a key difference compared with other countries: in the United States there is no single national inheritance law, but rather each state has its own rules.
What happens when there is no will (intestate succession)
If the person dies without a valid will, the state’s intestacy laws where they lived come into play. In practice, it is as if the state had “written” the will the deceased did not leave, distributing the assets according to a pre-established order of kinship.
That order, in general terms and with variations depending on the state, is usually as follows: first the spouse and children; if there are none, the parents; then the siblings and the siblings’ children; and, failing all of them, more distant relatives. If no heir appears, the assets end up passing to the state.
The spouse’s share is where the differences between states are most noticeable:
If there is a spouse and no children, in most states the spouse inherits everything; in some, they receive less if the deceased’s parents or siblings are also alive. If there is a spouse and children, it is common for the spouse to receive between one third and one half, and the rest is divided among the children.
Some states set a minimum amount for the spouse plus a share of the rest. If a child died before, that child’s share usually passes to that child’s descendants.
What happens when there is a will (testate succession)
When a valid will exists, that document determines how the assets are divided, replacing the intestacy rules. The testator can decide who receives what, with an important limit that is worth knowing.
That limit is the protection of the spouse. In most common law states, the surviving spouse has the right to claim a share of the inheritance, even if the will leaves them nothing. This is the so-called elective share, which generally ranges between one third and one half of the estate.
How they differ
The fundamental difference is who controls the distribution. With a will, the deceased person’s wishes prevail, within legal limits; without a will, state law prevails, applying its order of heirs without considering personal wishes.
A will allows, for example, assets to be left to friends, unmarried partners or organizations, something intestate succession does not contemplate, because it only recognizes relatives.