New York Intestate Succession

What intestacy covers

Intestacy governs property that passes through the probate estate and is not effectively disposed of by a will. Assets passing by joint ownership, beneficiary designation or trust may pass outside the intestate estate. Inventory the property and title before calculating heirs' shares.

New York Estates, Powers and Trusts Law section 4-1.1 sets the order when a decedent leaves no valid disposition. The decedent's domicile, survivorship facts and family structure matter. A spouse's rights in jointly held or marital property may be separate from intestate shares.

Surviving spouse and descendants

If the decedent leaves a spouse and issue, the spouse generally receives the first $50,000 and one-half of the balance; the issue receive the remaining half by representation. If the decedent leaves a spouse but no issue, the spouse generally takes the entire intestate estate. If there is issue but no spouse, the issue generally take the estate by representation.

The spouse-plus-issue formula is not simply an equal division of each asset. Calculate the estate value, apply the spouse's fixed amount and fractional share, then distribute the issue's portion by representation. Confirm whether any property is excluded or governed by a separate statute.

If there is no spouse or issue

If a decedent leaves neither spouse nor issue, EPTL 4-1.1 directs property through parents, siblings and descendants of siblings, grandparents and other relatives in a statutory order. The statute addresses half-blood relatives, representation and certain family configurations. Follow the precise branch that applies rather than relying on a generic family tree rule.

If no person in the statutory classes can inherit, the estate may escheat to the state under applicable law. This is a last resort after applying the statutory order and confirming the absence of eligible relatives.

Distribution by representation

Distribution by representation allocates a share to a deceased descendant's branch rather than treating every living descendant as an equal individual at the first step. Identify the closest generation with a living member under the statutory method, create shares for living members and deceased members with issue, then divide a deceased member's share among that branch.

Example: a decedent leaves two children, one living and one deceased with two children. The estate is divided into two child-level shares. The living child receives one share; the deceased child's two descendants divide that branch's share. Apply the statutory definition and facts about survivorship carefully.

Adoption, nonmarital children and survival

Family relationships can affect inheritance. New York statutes address adopted children, nonmarital children, posthumous children and children conceived before death but born alive, subject to defined proof and exceptions. Do not assume that biology, marriage status or household relationship alone settles legal parentage for inheritance.

A person generally must survive the decedent by the period required by statute or governing instrument. Simultaneous-death and survivorship rules can alter who inherits. Verify the current EPTL provisions when the facts involve a short interval between deaths.

Spousal rights beyond intestacy

A surviving spouse may have rights such as an elective share that operate separately from intestacy. A will can dispose of probate assets yet remain subject to statutory spousal protections. Analyze whether the question asks for intestate distribution, an elective share or ownership of marital property; these are different paths.

Calculation method

1. Separate probate assets from property passing by title, contract or trust.
2. Confirm domicile, death order and legally recognized family relationships.
3. Apply the EPTL 4-1.1 branch that fits the surviving relatives.
4. Calculate spouse and issue shares, using representation for descendant branches.
5. Check adoption, parentage, survivorship, disqualification and elective-share issues.
6. State who receives each portion and identify any unresolved valuation or title issue.

A precise answer shows the share calculation. For a $250,000 intestate estate passing to a spouse and one child, the spouse's default share is $50,000 plus half of the remaining $200,000, or $150,000 total; the child receives $100,000. This illustration assumes no deductions, excluded assets or competing statutory issue.

Separate probate property from the family’s overall assets

Intestacy is a distribution rule for probate property that is not effectively disposed of by a will. Before applying EPTL 4-1.1, identify the estate being distributed. Joint ownership with survivorship, valid beneficiary designations and funded trusts may pass assets outside the intestate estate. A spouse may also hold an ownership interest that is not an inheritance share.

A decedent leaves a spouse and child, a jointly held bank account and a life-insurance policy naming a sibling. First determine what property enters probate. Apply intestacy to the probate assets only; analyze the account's title and insurance contract separately. Do not give the spouse an intestate share of every asset simply because the spouse survives.

Apply the spouse-and-issue formula in order

When a decedent leaves a spouse and issue, the spouse generally receives $50,000 plus one-half of the balance, and the issue receive the remaining half by representation. Calculate the statutory share in sequence: determine the probate estate after relevant deductions and excluded property, allocate the spouse's fixed amount and fractional share, then divide the issue's portion among the descendants under the representation rule.

For a $250,000 estate with a spouse and one child, and no other relevant facts, the spouse receives $50,000 plus half of the $200,000 balance, for $150,000. The child receives the remaining $100,000. This is not a simple one-half split. If multiple children or descendant branches exist, apply representation to the issue's half rather than dividing it equally among all living individuals without considering deceased descendants.

Distribution by representation follows family branches

If one of the decedent's children died before the decedent but left descendants, those descendants generally take through the deceased child's branch under the statutory representation method. Identify the generation where living descendants first appear, create the statutory shares, and divide a deceased person's share among that person's issue. The precise method and family facts matter.

Assume the decedent leaves two children, one living and one deceased with two children. At the child generation, the living child takes one branch share and the deceased child's descendants divide the other branch share. If the spouse also survives, first determine the spouse's statutory portion; apply representation to the issue's share. Draw a simple family tree before doing the arithmetic.

Follow the statutory order when close relatives are absent

If there is no spouse or issue, EPTL 4-1.1 directs the estate through parents, siblings and descendants of siblings, grandparents and more remote relatives in an ordered scheme. Do not jump from “no children” to siblings without checking for a surviving parent or another prior class. Half-blood relationships, representation and particular family configurations can alter who takes.

If no eligible relative exists under the statutory classes, the estate may escheat to the state. Treat this as the end of the statutory search, not a default whenever the decedent's closest family member is unavailable. Trace the family tree through the statutory order and verify each potentially qualifying relative.

Legal parentage, adoption and survivorship

Inheritance depends on legally recognized relationships, not only biology or household arrangements. New York statutes address adopted children, nonmarital children, children conceived before death and born alive, and other parentage circumstances. Identify the legal relationship and any proof requirement or exception in the applicable EPTL provision.

A child raised by the decedent but never adopted does not automatically inherit as a child under every statutory rule. Conversely, an adopted child can have inheritance rights defined by statute that differ from an informal family label. State the relationship shown by the facts and identify whether the statute recognizes it.

A person generally must satisfy the applicable survival rule to inherit. If spouses or parent and child die close together, determine the order of death and any statutory survivorship period. A will or other instrument can contain its own survival condition. Do not assume that appearing alive after the same accident establishes the required legal survival.

Intestacy is not the same as an elective share

A surviving spouse can have statutory rights beyond an intestate share, including an elective share in some circumstances. The elective share can matter even when a will disposes of property. Analyze what the question asks: intestate distribution, ownership of marital property, an elective share or rights under a will are distinct doctrines.

A decedent may leave a will that gives most property to a friend while a spouse survives. Do not apply the spouse-and-issue intestacy formula to the entire estate automatically. Determine whether assets are probate property, what the will provides, what property belongs to the spouse independently and whether an elective-share claim is raised.

A complete distribution worksheet

Write the family structure and asset list before calculating. Confirm domicile and death order, remove nonprobate transfers, identify the statutory branch, and then compute the shares. If a relationship or valuation is disputed, state how the result changes depending on that fact. The goal is to explain both who inherits and why the property is in the estate.