State law, which is often based on the Uniform Probate Code or UPC, provides for how property is to be distributed when a person dies without a last will and testament. State law first provides for the surviving spouse when this occurs. This article will use the UPC to describe the surviving spouse’s share. This can get a little tricky, so bear with me here.

The UPC provides that:

1. The surviving spouse takes the decedent’s entire estate if (1) the decedent died when his or her kids and parents were already deceased or (2) the decedent’s kids are all descendants of the surviving spouse;
2. If no kids survive the decedent but a parent of the decedent survives the decedent, the surviving spouse will receive the first $200,000 plus three-fourths of any balance of the intestate estate;
3. If all of the surviving kids are descendants of the surviving spouse and the surviving spouse has one or more surviving kids that are not related to the decedent, the surviving spouse will receive the first $150,000 plus one-half of any balance of the intestate estate; or
4. If one or more of the decedent’s surviving kids are not kids of the surviving spouse, the surviving spouse will receive the first $100,000 plus one-half of any balance of the intestate estate.

This carries out the policy that the probable intent of the average intestate decedent is to give everything to the surviving spouse when there are no children from a prior marriage, thus excluding parents and siblings.

The decedent generally cannot opt out of these allocations by executing a will. The surviving spouse may also be entitled to an elective forced share if he or she does not receive these amounts.

The surviving spouse’s elective forced share can amount to upwards of 50 percent of the decedent’s estate. The UPC provides a sliding scale for the elective forced share that increases with the length of the marriage. Specifically, the UPC provides that the surviving spouse can elect the amounts they were provided for in the decedent’s will or the following amounts:

1. If the marriage lasted for less than one year, 0 percent;
2. If the marriage lasted one to ten years, 3 percent each year;
3. If the marriage lasted eleven to fifteen years, 4 percent each year between 10 and until year 15;
4. If the marriage lasted fifteen years or more, 50 percent.

Having provided for the surviving spouse in situations where the decedent dies without a will, state law will typically go on to define the shares that other non-spouse beneficiaries are to receive.