Do You Need a Will? The Law of Intestate Succession

When an individual passes away without valid estate planning documents that individual’s estate passes in accordance with the law of intestate succession, which is defined as “[t]he method used to distribute property owned by a person who dies without a valid will.” BLACK’S LAW DICTIONARY 1569 (9th ed. 2009). Per Wisconsin Statutes, Chapter 852, the estate would pass as follows:

  1. To a surviving spouse or domestic partner (Note: if children were born from someone besides the surviving spouse, the surviving spouse receives half the estate and such children would receive the other half);
  2. To children, grandchildren, great-grandchildren, etc;
  3. To parents;
  4. To siblings or the children of pre-deceased siblings;
  5. To grandparents or the children, grandchildren, great-grandchildren, etc. of grandparents; then
  6. To the state.

This structure is meant to pass an estate in accordance with most people’s desires. For example, I am married with no children. If I passed away without a valid will my estate would pass to my husband. This result would match my desires. However, if my husband and I were involved in an accident in which I passed away immediately and my husband passed away six days later, my entire estate would pass to my husband and then his estate, including my half of the estate, would pass to his parents. See WIS. STAT. § 843.03. The laws of intestate succession would no longer accomplish my desires. In such a situation, I would want my half of the estate to pass to my parents.

Even with a simple family situation like mine, the laws of intestate succession may not always achieve desirable results. As family situations become more complex, with children and divorces, the laws of intestate succession may need to be modified by valid estate planning documents to achieve an individual’s desires.

Lets look further at some of the idiosyncrasies of intestate succession and how it may play out in undesirable ways.

Scenario: Nancy marries Greg and together they have two children, Annabelle and Bobby. Nancy and Greg get divorced. Thereafter, Nancy marries Charles. Nancy and Charles have one child together, Claire.

Under these facts, if Nancy were to pass away without a will, Charles would get half of her estate and her two children with her first husband, Annabelle and Bobby, would get the other half of the estate. Her third child, Claire, would receive nothing. If Nancy had wanted her surviving husband to receive her entire estate, she could accomplish this through a will or trust. 

However, if Nancy simply had a will giving her entire estate to her surviving spouse, her desires may still not be achieved. For example, if Charles were to then pass away without a will, his entire estate would go to Claire, and Nancy’s children from her first marriage would receive nothing. With a thoughtful estate plan, Nancy could give her entire estate to her surviving spouse for life, and then equally to the three children.

Even with this arrangement there would be further peculiarities that Nancy would want to consider. For example, if Annabelle, married with no children, where to pass away before Nancy, would Nancy want to give Annabelle’s husband Annabelle’s share of her estate or just split the estate between Bobby and Claire? If Annabelle had a child with her husband, would Nancy want her grandchild to receive Annabelle’s share?

(Note: When minor children inherit, further complexities result which will be discussed in a later post.)

An attorney can help you evaluate the different scenarios, discuss the available options, and provide you the documents needed to help ensure your estate will pass as you desire. A carefully thought out estate plan will help ensure your wishes will be achieved, even in a worst-case scenario.

If you have any questions about your estate, please contact me at kwilliams@kristinewilliamslaw.com or 920-655-0487. I would be happy to answer any questions you may have and, if desired, we can start discussing your options for creating or modifying your estate plan.

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