Most American adults do not have a will. What surprises people is that this does not mean their property goes nowhere, or to the state, or into some legal void. It means the legislature has already written their will for them. Every state has an intestacy statute: a default distribution scheme that applies when someone dies without a valid will. It is, in effect, the estate plan you get when you do not make one.
Here is how that default plan works, and why it so often does something the person would never have chosen.
How is the statute a flowchart?
Intestacy law is a cascade of if-then rules keyed to family structure. The questions come in a fixed order. Is there a surviving spouse? Surviving descendants? Are all of the descendants also descendants of that spouse, or is this a blended family? If no spouse or descendants, are the decedent’s parents alive? Siblings? The estate flows down the chart until it finds takers, and only if the entire family tree is empty does property escheat to the state. That outcome is rare and the statute is built to avoid it.
In Massachusetts, the scheme lives in the Uniform Probate Code, adopted as Chapter 190B of the General Laws. Its core instinct: if everyone in the picture belongs to one nuclear family, the surviving spouse takes everything, on the theory that the spouse will provide for the children. The shares change when the family is blended. If either spouse has children from another relationship, the statute splits the estate between the spouse and the decedent’s descendants, using a formula of a fixed dollar amount plus a fraction of the rest.
Connecticut runs on the same logic with different numbers. A surviving spouse shares with the decedent’s parents if there are no children, and shares with the children if there are, again through a dollar-amount-plus-fraction formula that differs depending on whether the children are also the spouse’s. The exact figures in both states are statutory details worth confirming at the moment they matter, which is precisely the kind of thing a lawyer checks against current text rather than memory.
What does the default plan get wrong?
The statute is a reasonable guess at what an average person would want. The problems show up at the edges, which is where real families live.
Unmarried partners take nothing. Intestacy runs on legal relationships, not actual ones. A partner of twenty years who never married inherits zero, while a sibling who has not called in a decade may take the whole estate. Stepchildren who were never adopted generally take nothing either. Meanwhile, an estranged legal spouse, separated but never divorced, remains a spouse for intestacy purposes.
The statute also cannot do any of the structural work a real plan does. It cannot leave the house to one child and cash to another, hold money for a young beneficiary beyond the basics of a conservatorship, give anything to a friend or a charity, or account for the fact that one child already received help with a down payment. It distributes fractions of a pot, and it does so through a full probate administration in which the court also picks the personal representative, using a statutory priority list rather than the person you would have trusted.
What is the quiet exception that swallows the rule?
One more twist: intestacy only governs the probate estate. Life insurance, retirement accounts, jointly held property, and anything with a beneficiary designation pass outside the statute entirely, exactly as they pass outside a will. For many households, especially younger ones, those assets are most of the estate. So the intestacy statute may end up distributing surprisingly little, and the real estate plan, the one actually operating, is the stack of beneficiary forms filled out years ago and never updated. That is not a reason to relax. It is a reason to check the forms.
The fix for all of this is not exotic. A basic will names your takers and your personal representative and overrides the flowchart. How wills compare to trusts, and when a trust is worth the added cost, is covered in a companion piece on this site.
I am a law student, not a lawyer. Nothing here is legal advice.
