Intestate Succession in New York

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

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 Nolo.com or read about Avoiding Probate in New York.

Who Gets What in New York?

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:

The Spouse's Share in New York

In New York, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants -- children, grandchildren, or great grandchildren. If you don't, then your spouse inherits the first $50,000 of your intestate property, plus 1/2 of the balance

Example 1: Bill is married to Karen, and they have two grown children. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright -- those things are not intestate property. Bill also owns $350,000 worth of other property that would have passed under a will. Karen inherits $200,000 worth of that property -- that is, $50,000 plus $150,000 worth of the balance. The two children split the remaining $150,000.

Example 2: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $125,000 worth of Barrett's property -- that is, $50,000 plus $75,000 worth of the balance. Barrett's daughter inherits the remaining $75,000 share of Barrett's property.

Children's Shares in New York

If you die without a will in New York, 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 New York 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. New York Con. Laws § 7-4.117.
• 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. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. N.Y. Estates, Powers & Trusts Law § 1-2.16.
• Posthumous children. Children conceived by you but not born before your death will receive a share if the child was in utero within two years of your death or born within three years of it. N.Y. Estates, Powers & Trusts Law § 4-1.3.
• Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will receive a share of your estate if (1) you and the child's mother signed an acknowledgment of paternity and filed it where your child's birth certificate is registered, (2) you signed a document acknowledging paternity; you openly acknowledged the child as your own; (4) or a court has determined your paternity. N.Y. Estates, Powers & Trusts Law § 4-1.2.
• Children born through artificial insemination. Your child born through artificial insemination will receive a share of your estate if you consented to the use of your genetic material to be used after your death and this consent was made within seven years of your death. N.Y. Estates, Powers & Trusts Law § 4-1.3.
• 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. N.Y. Estates, Powers & Trusts Law § 1-2.16.

If you want to read the law, New York Estates, Powers & Trusts Law § 4-1.2 covers 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, great grandchildren, parents, grandparents, siblings, nieces, nephews, great nieces or nephews, aunts, uncles, or cousins.

Other New York Intestate Succession Rules

Here are a few other things to know about New York's intestacy laws.

• 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. N.Y. Estates, Powers & Trusts Law § 4-1.1.
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive. N.Y. Estates, Powers & Trusts Law § 4-1.1.
• 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.
• Joint tenant convicted of murder. One joint tenant who is convicted of murdering another joint tenant is not entitled to inherit any money in the joint tenants' bank account. The convicted joint tenant is entitled only to any money that the convicted joint tenant contributed to the account. New York Estates, Powers & Trusts Law § 4-1.6.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's No Will.

You can find New York's intestate succession law here: New York Estates, Powers & Trusts Law § § 4-1.1 to 4-1.6.

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

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

For more on New York estate planning issues, see our section on New York Estate Planning.