If You Own a Home and Don’t Have a Will, Your State Decides Who Gets It
Approximately 67% of Americans don’t have a will or estate plan, according to a 2024 Gallup survey. For homeowners, this creates a serious problem: when you die without a will (called dying “intestate”), your state’s laws — not your wishes — determine who inherits your home.
And the results are often not what families expect.
How Intestate Succession Works
Every state has intestate succession laws that dictate a specific order of inheritance. While the details vary, the general hierarchy is:
1. Surviving spouse — In most states, the surviving spouse receives a significant share, but rarely 100% if there are children.
2. Children — If there’s no spouse, or after the spouse’s share, children inherit equally.
3. Parents — If there’s no spouse or children.
4. Siblings — If there’s no spouse, children, or living parents.
5. Extended family — Nieces, nephews, aunts, uncles, cousins — in a specific order set by state law.
The Surprises Most Families Don’t See Coming
Your spouse may not get the whole house. In many states, if you have children from a previous relationship, your current spouse may only receive one-third to one-half of the estate — with the rest going to your children. This can force the sale of the family home.
Unmarried partners get nothing. If you’re not legally married, your partner has zero inheritance rights under intestate succession in every state — no matter how long you’ve been together or how much they’ve contributed to the home.
Step-children may be excluded. In most states, step-children you never legally adopted do not inherit under intestate succession, even if you raised them from childhood.
The probate process is slow and public. Without a will, your estate must go through probate court — a process that can take 6-18 months, costs thousands in legal fees, and is part of the public record.
Community Property vs. Common Law States
Nine states — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin — are community property states. In these states, assets acquired during marriage are generally owned 50/50 by both spouses, which affects how property is distributed.
The remaining 41 states follow common law property rules, where ownership is determined by whose name is on the title or deed.
What You Should Do
Get a will. A basic will can cost as little as $150-$300 through an attorney or online service. It’s the single most effective way to ensure your home goes to the person you choose.
Consider a transfer-on-death deed. Many states now allow “TOD deeds” that transfer your home to a named beneficiary when you die — without probate. This is simpler and cheaper than a trust.
Review beneficiary designations. Make sure your retirement accounts, life insurance, and any TOD deeds are up to date and consistent with your wishes.
Talk to your family. The most common source of inheritance conflict isn’t the law — it’s unspoken assumptions. Having a conversation now can prevent a crisis later.
Sources: American Bar Association; Gallup 2024 Estate Planning Survey; National Conference of State Legislatures; individual state probate codes. This article is for informational purposes only and does not constitute legal advice.
