Intestate Succession in Idaho

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

Updated by , Attorney ● George Mason University Law School
Updated 12/29/2023

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 pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

  • property you've transferred to a living trust
  • life insurance proceeds with a named beneficiary
  • funds in an IRA, 401(k), or other retirement account with a named beneficiary
  • securities held in a transfer-on-death account
  • real estate for which you have a transfer on death deed
  • vehicles for which you have a transfer on death registration
  • payable-on-death bank accounts, or
  • property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

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

(Idaho Code §§ 15-2-102; 15-2-103 (2023).)

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?

You can find Idaho's community property laws here: Idaho Code §§ 32-901 to 32-929.

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. (See Above.)

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. (Idaho Code § 15-2-109 (2023).)
  • 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. (Idaho Code § 15-2-109 (2023).)
  • 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. (Idaho Code § 15-2-108 (2023).)
  • Children born outside of marriage. If you were not married 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—even if it 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. (Idaho Code § 15-2-109 (2023).)
  • Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. (Idaho Code § 15-2-106 (2023).)

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. (Idaho Code § 14-113 (2023).)

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, nieces, 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. (Idaho Code § 15-2-104 (2023).)
  • 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. (Idaho Code § 15-2-107 (2023).)
  • Posthumous relatives. Relatives conceived before—but born after—you die inherit as if they had been born while you were alive as long as they are born within ten months of your death. (Idaho Code § 15-2-108 (2023).)
  • Artificial Insemination. Relatives conceived by artificial insemination before your death receive a share and are treated like they were born during your lifetime as long as they are born within ten months of your death. (Idaho Code § 15-2-108 (2023).)
  • 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. (Idaho Code § 15-2-112 (2023).)
  • Advancements. If you gave property to a relative during your lifetime, the value of this property is subtracted from the relative's share only if you state in writing that it was an advancement at the time of the gift or the relative admits this in writing. (Idaho Code § 15-2-110 (2023).)

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's 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

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