Passing Without a Will: The Little Good News and the Big Bad News
The good news about passing without a will is that your assets do not automatically get grabbed by the state, as common lore might have it. To the extent that you fear that your assets will go to the state if you fail to make a will, your fears are for the most part unfounded. The bad news about passing without a will is that you lose out on the opportunity to decide who gets what of your assets. The term for someone who passes without a will is “intestate”; used in a sentence, the term would be “So and so” passed intestate. As you may or may not know, there are specific Connecticut statutes that decide what becomes of your assets depending on who survives you, i.e., what portion goes to a spouse, parents, children, etc. etc., when you pass away without a will.
What follows is a general summary of how your probate assets would be divided, according to Connecticut statutes, should you die intestate. As you will see, the intestate statutes are blunt instruments that do not do justice to the complexity of human relationships and situations. In order to do justice to the complexity of both human relationships and circumstances, everyone should consider basic estate planning.
Now for the illustrations. We begin with spouses. If you leave behind a spouse, he or she would receive all of your assets subject to probate if you have neither surviving parents or children. See C.G.S.A. § 45a-437(a)(1). In this scenario, the statute’s distribution of assets – giving all of the probate assets to a spouse who is a lone survivor makes sense. The intestate statute’s limitations come to the fore, however, where the decedent is survived by more than just a spouse. For example, if the decedent leaves behind parents and/or children, the surviving spouse is guaranteed only the first $100,000 of the probate estate but would have to share the rest with parents and children (the percentage of that sharing depends on the identity of the survivors – the surviving spouse would receive more if the only survivors are parents, less if the only survivors are children who are issue of the decedent and surviving spouse and even less if the surviving children are issue solely of the decedent). See C.G.S.A. § 45a-437(a)(2)-(4). The intestate statute does not take into consideration all of the various scenarios in which this distribution would not conform well to reality. For example, it would be inappropriate in a scenario in which the decedent’s parents and children are well off and therefore do not need assets from the probate estate but the surviving spouse has a very modest income and needs a lot of help and assistance to maintain a modest quality of life. In addition, the intestate statute does not contemplate a scenario in which the decedent and surviving spouse may be estranged and no longer live with each other, live independent lives with separate finances but may be staying married “on paper” for the limited purpose of health-insurance coverage. It is more common these days now that health-care insurance premiums have sky-rocketed. Under such a scenario, children of the decedent who are stepchildren to the surviving spouse would be unable to prevent the surviving spouse from taking a significant portion of the probate estate.
If you leave behind children in addition to a spouse, the intestate statutes require even-handed distribution to each of them. See C.G.S.A. § 45a-438. Thus, while circumstances may advise leaving more assets to one child – perhaps he or she has special needs or special circumstances – the intestate statutes will not allow asymmetrical distributions. Each child will necessarily receive the same percentage of assets.
Where a decedent does not leave behind either parents or children, then the probate estate is distributed equally to siblings, if such survive. See C.G.S.A. § 45a-439(a)(2). If siblings do not survive, then the probate estate is distributed equally to next of kin, if such survive. See C.G.S.A. § 45a-439(a)(3). If no next of kin survive, then the probate estate is distributed equally to stepchildren. See C.G.S.A. § 45a-439(a)(4).
It goes without saying that the intestate statutes do not permit distributions to individuals who are neither family by blood or marriage or spouses. Nor do they permit distributions to charitable organizations. For those who wish to transfer assets to either individuals who are not family or related by marriage or charities, they must execute a valid will.
The bottom line is that in the usual case the intestate statutes will not distribute assets in line with the complexities of our lives and situations. Estate planning can do justice to the complexities of our lives by allowing for a thoughtful distribution of assets to those who may need it most when we are gone. To that end, everyone should consider consulting with an attorney to see what sort of estate planning is most appropriate for his or her circumstances.
Disclaimer: Edgar Law LLC provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Attorney Advertising.
Interestingly, a testator may have limited power when it comes to estate planning that seeks to disinherit a spouse who is so “on paper” alone due to what is called the statutory share. See C.G.S.A. § 45a-436. Under the statutory share, a surviving spouse may demand a life estate of one third of the probate estate, even where the decedent attempts to disinherit the spouse. See id. This is but one of many circumstances where careful estate planning is necessary to prevent surprising and unpleasant outcomes.
The intestate statute has been modernized to the extent of recognizing as beneficiaries children born out of wedlock, contingent on the paternity of those children being confirmed by written acknowledgement of the father or through court adjudication. See C.G.S.A. § 45a-438.
In the unlikely event that the decedent is not survived by a spouse, a parent or children, a sibling or next of kin of any sort, then, yes, assets get taken by the state. It is a low-probability event but it does happen.