I received a note recently from someone asking if it was possible for her to fight the intestacy laws.
She and her husband had been married for 31 years and he had died without a Will. Her husband bad been married previously and had three adult children. He paid a large amount of child support and tried to help in any way that he could; however, they were never a part of his life. They never called or sent cards for holidays and birthdays, never acknowledged him as their father, and actually wished him death.
Nevertheless, because he died without a Will, the intestacy statutes will control how his property will be distributed.
The intestacy statutes are rigid and inflexible. They don’t take into account a deceased person’s unique circumstances and may dictate that assets be distributed in a manner the deceased person would have never intended.
When a person dies without a Will and has children from another marriage, the intestacy statutes dictate that the deceased person’s children will inherit his or her one-half interest in the community estate.
With respect to separate property, a surviving spouse is entitled to one third of separate personal property and only a life estate (the right to use the property until his or her death) in one-third of separate real property. The rest would be inherited outright by the children of the deceased spouse.
This is likely not what her husband would have wanted, but without a Will, the intestacy statutes control.
If you want the freedom to decide how and to whom your property will be distributed when you die, you need a will.