How is an estate divided when the decedent’s spouse is still alive?

Generally, when someone dies intestate (without leaving behind a legally valid will) and is survived by their spouse, the inheritance scheme works as follows (this may differ in some states, so you should be careful to check your state’s probate code). The spouse will be entitled to all of the deceased’s estate where the deceased does not have any surviving parents and either has no surviving children or all of his/her surviving children are also the spouse’s children.

Where the deceased does have one or more surviving parents (in addition to a surviving spouse) but no surviving children, the spouse will get the first $200,000 of the probate estate, plus three-fourths of what is left after the first $200,000. The surviving parent(s) would get the other one-fourth of what is left in the estate after the first $200,000.

Where there are surviving children (in addition to a surviving spouse), the situation changes depending on whether all of them are children of both the deceased and the spouse, or whether some of them are only children of the deceased or the spouse: (1) where the deceased and the spouse are the parents of all of the surviving children, then as discussed above, the spouse gets all of the deceased’s estate; (2) where the deceased is the parent of one or more children and the spouse is not the parent of those children, the property is distributed a little differently - the spouse will get the first $100,000 of the probate estate plus one-half of what is left after the first $100,000 and the deceased’s child or children (who the spouse is not a parent of) will get the other one-half of what is left after the first $100,000; and (3) where the spouse has one or more surviving children who the deceased was not the parent of, the spouse will get the first $150,000 of the probate estate plus one-half of what is left after the first $150,000 and the child or children who both the deceased and spouse were the parents of will get the remaining one-half of the estate.