Intestate Succession in Idaho

What happens if you die without a will? Learn about intestacy in Idaho.

If you die without a will in Idaho, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in Idaho.

Which Assets Pass by Intestate Succession

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.

Many valuable assets don’t go through your will, and aren’t affected by intestate succession laws. Here are some examples:

  • property you’ve transferred to a living trust
  • life insurance proceeds
  • funds in an IRA, 401(k), or other retirement account
  • securities held in a transfer-on-death account
  • payable-on-death bank accounts, or
  • property you own with someone else in joint tenancy.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

To learn more about these types of assets, go to the  How to Avoid Probate  section of or read about  Avoiding Probate in Idaho.

Who Gets What in Idaho?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:

If you die with: here’s what happens:
  • children but no spouse
  • children inherit everything
  • spouse but no descendants or parents
  • spouse inherits everything
  • parents but no spouse or descendants
  • parents inherit everything
  • a spouse and descendants
  • spouse inherits all of your community property and 1/2 of your separate property
  • children inherit 1/2 of your separate property
  • a spouse and parents
  • spouse inherits all of your community property and 1/2 of your separate property
  • parents inherit 1/2 of your separate property

    The Spouse’s Share in Idaho

    In Idaho, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property -- as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.

    If you want to learn more about how community property works, read  Separate and Community Property During Marriage: Who Owns What?

    Your spouse will inherit your half of the community property. If you have separate property (many spouses mix everything together and don’t have any separate property) your spouse will inherit all or a portion of it. The size of your spouse’s share of your separate property depends on whether or not you have living parents or descendants. If you do, they and your spouse will share your separate property.

    If you and your spouse are legally separated -- but not yet divorced -- when you die without a will, your spouse will not be entitled to your property. If you’re concerned about this area of the law, see an experienced attorney for help.

    Children’s Shares in Idaho

    If you die without a will in Idaho, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)

    For children to inherit from you under the laws of intestacy, the state of Idaho must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.

    • Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do.
    • Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
    • Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share unless the decree of adoption specifically provides for continuation of inheritance rights. If, however, your biological children were adopted by your spouse, that won’t affect their intestate inheritance.  
    • Posthumous children. Children conceived by you but not born before your death will receive a share if they are born within ten months of your death.
    • Children born outside of marriage. If you were not to your children’s mother when she gave birth to them, they may receive a share of your estate if (1) you had participated in a marriage ceremony that later turned out to be void, (2) your paternity is legally established before your death, or (3) your paternity is legally established after your death by clear and convincing proof.
    • Grandchildren. Your grandchildren will receive a share only if their parent (your child) has died before you do.

    In case you want to read the law, Idaho Code § §  15-2-108  and  15-2-109  cover parent-child relationships.

    This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.

    Will the State Get Your Property?

    If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you.  For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, neices, nephews, or cousins.

    Other Idaho Intestate Succession Rules

    Here are a few other things to know about Idaho intestacy laws.

    • Survivorship period. To inherit under Idaho’s intestate succession statutes, a person must outlive you by 120 hours. So if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property.
    • Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
    • Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive.
    • Immigration status.  Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.

    Learn More

    To learn more about intestate succession, read  How an Estate Is Settled When There is No Will.

    You can find Idaho’s intestate succession laws here:  Idaho Code § § 15-2-101 to 15-2-114.

    For more about estate planning, go to the  Wills, Trusts & Probate  section of

    Need a lawyer? Search for an experienced estate planning attorney with  Nolo’s Lawyer Directory.

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