The short answer
When someone dies without a will, they die intestate, and the law of the state where they lived decides who inherits. For real estate, it's the law of the state where the property is. The general order is the same everywhere:
- The surviving spouse
- Children, and the children of a child who died earlier
- Parents
- Siblings and their children
- More distant relatives (grandparents, aunts and uncles, cousins)
- If there's nobody, the state (called escheat)
The details vary most in how much the spouse gets when there are children, especially children from another relationship.
The spouse's share in the largest states
| State | Spouse and children (all also the spouse's) | Spouse and a child from another relationship | Spouse, no children |
|---|---|---|---|
| California | All community property; 1/2 of separate property with one child, 1/3 with more | Same | All community; separate shared with parents or siblings if any |
| Texas | All community property; separate: 1/3 of personal property and a life estate in 1/3 of the land | Keeps own half of community; decedent's half goes to the children | All community; separate: all personal property and 1/2 of the land |
| Florida | Everything (if the spouse has no other children either) | 1/2 | Everything |
| New York | $50,000 plus 1/2 of the rest | Same | Everything, even if parents are alive |
| Ohio | Everything | $20,000 plus 1/2 (one child), or $20,000 to $60,000 plus 1/3 (more than one) | Everything |
| Illinois | 1/2 | 1/2 | Everything |
| Pennsylvania | $30,000 plus 1/2 | 1/2 | Everything if no parents; $30,000 plus 1/2 if a parent survives |
The children split whatever the spouse doesn't take, equally. If a child died earlier, that child's children take their parent's share.
The Uniform Probate Code states
About a third of states base their law on the Uniform Probate Code (Arizona, Colorado, Minnesota, Michigan and others). Its default rules, which each state can adjust:
- Spouse gets everything if there are no descendants or parents, or if all the descendants are also the spouse's and the spouse has no others.
- Spouse gets the first $300,000 plus 3/4 of the rest if there are no descendants but a parent survives.
- Spouse gets the first $225,000 plus 1/2 if all the decedent's descendants are also the spouse's, but the spouse has children from another relationship.
- Spouse gets the first $150,000 plus 1/2 if the decedent has children who aren't the spouse's.
The dollar amounts are adjusted for inflation in some states, so check your state's current figures.
What happens to the house
Community property states
In California, Texas and the other community property states, a house bought during the marriage is usually community property, and the surviving spouse ends up with all of it when the children are shared. In Texas, if the decedent had a child from another relationship, that child inherits the decedent's half of the community house, and the spouse keeps their own half. If the house was the decedent's separate property, the surviving spouse gets only a life estate in a third of it, and the children own the rest.
Florida's homestead rule
Florida treats the homestead differently from everything else. If a married Floridian dies without a will and leaves children, the surviving spouse gets a life estate in the home, and the children own it after the spouse dies. Within six months of the death, the spouse can instead choose to own an undivided half as a tenant in common with the children. The choice is irrevocable, and it decides who pays the property tax, insurance and repairs. See the Florida homestead guide.
Several heirs own it together
When several children inherit, they own the house together. Any of them can usually force a sale through a partition lawsuit, and if nobody updates the title for a generation, it becomes heirs' property. The property tax bill keeps coming in the dead owner's name, and someone has to pay it. See property taxes on an inherited house.
Who gets nothing without a will
- Unmarried partners, however long the relationship, unless you live in a state that recognizes common-law marriage and you qualify.
- Stepchildren, unless they were legally adopted. Ohio is an exception: stepchildren inherit ahead of the state if there are no other relatives.
- Friends, caregivers and charities.
- In-laws. A child's spouse inherits nothing directly.
If anyone in that list matters to you, you need a will, a trust or a transfer on death deed for the house.
How the heirs get the house
Inheriting under intestacy doesn't put the house in your name automatically. Usually someone has to open a probate case and be appointed administrator, or use a shortcut: a small estate affidavit, an affidavit of heirship (Texas), or a court determination of heirs. See the probate process step by step and probate in Texas.
Quick answers
Does the spouse automatically get everything if there's no will?
Only in some cases. In Florida, Ohio and the Uniform Probate Code states, the spouse gets everything if all the children are also the spouse's. In Illinois, New York and Pennsylvania the children always share.
Do children inherit if there's no will?
Yes. Children are next after the spouse, and they inherit everything if there's no surviving spouse.
What if there are no relatives at all?
The property goes to the state. In Illinois, real estate goes to the county where it's located.
Sources
California Probate Code 6401; Texas Estates Code 201.001 to 201.003; Florida Statutes 732.102 and 732.401; New York EPTL 4-1.1; Ohio Revised Code 2105.06; 755 ILCS 5/2-1; 20 Pa.C.S. 2102; Uniform Probate Code section 2-102 as adopted in Minnesota Statutes 524.2-102. Some were read from FindLaw and public.law mirrors of the official codes. This is general information, not legal advice; the rules for half-siblings, adopted children and children born after death vary by state.