Okay…so, my husband has no children. I have one child. My husband and I die in a crash. Does everything go to my child or does half of our estate go to his siblings? Provided nothing is stated otherwise in a will, of course.
The answer will vary depending on the intestacy statutes of your state of residence. In Wisconsin, the step-child (if your husband adopted her) would inherit everything. If she’s a step-child, it appears that she would inherit all of your non-marital property and your share of the marital property. Your husband’s parents would inherit his non-marital property and his share of the marital property. If they’re both dead, it would go to his siblings, and if any of his siblings were dead, to their children per stirpes. If all of his siblings and their offspring are dead, it would go to his grandparents and his aunts and uncles per stirpes. If he had absolutely no surviving heirs, his property would go to the state to be added to the capital of the school fund.
Per stirpes means that the share that would normally go to an heir is divided equally among that heir’s survivors. So if your husband had two siblings, one of whom was dead but had two surviving children, the surviving sibling would get half of your husband’s estate and each of the dead sibling’s children would get a quarter of it.
IANAL, etc.
The best thing I can tell you is that you need to get a will/trust in place before you get hit by that bus.
Don’t let the state decide what happens to your estate. You need to make those decisions now, well in advance of any bad thing happening.
IANAL but I am a parent and I made sure that everything would be done according to my express wishes.
Well, I did do a will, but haven’t updated it since we married. One of those things I’ve put off for a long time. He’s not actually a “child”, as he’s 29 years old. But I just got to thinking about it…for the first time ever.
This is one of those questions that can go on interminably, as each state’s inheritance laws will vary from any other’s. (Not to mention that we are an international board…)
In general, states’ laws provide that if one dies without a will leaving a spouse and no children, the spouse inherits everything. With a spouse and children, it’s divided according to that state’s provisions for fair proportions. (In New York, for example, it’s life tenancy of house and 1/3 of estate to wife, 2/3 divided equally among children. In North Carolina, IIRC, 1/2 plus primary residence to wife and the other 1/2 divided among kids.) With kids but no surviving spouse, they divide it equally. Without surviving spouse or kids (and without grandkids), either the parents or the siblings or both inherit, depending on state laws. And heirs of deceased would-be-heirs-if-alive are entitled to proportionate shares of what their predecessor would have gotten. (Otto covered that in his per stirpes post.)
Death of a couple by “common disaster” (both die within a few days of each other by the same cause) are generally treated as though neither survived the other, the heirs of each inheriting his/her estate and half of any commonly held accounts or property.
Each state, however, has its own quirks … and a court-appointed administrator can eat up a significant share of an estate. A will is always a good move.
In the circumstance described in Kalhoun’s OP, and assuming that the state does not provide for inheritance by stepchildren without a will or adoption proceedings, Kalhoun’s estate would go to her child; her husband’s estate would go to his legal heirs under his state’s statutes (probably his siblings as specified, but check the law); any property that Mr. & Mrs. Kal held jointly (house in both their names, joint bank account, whatever) would go half to Kal-kid, and half to Kal’s siblings-in-law (or whoever is legal intestate heir for Mr. Kal).
Thanks, Poly. I’m in Illinois. As I understand it, a surviving spouse inherits all, but I never knew the intricacies of the siblings thing vs. Kid Kalhoun if we both go down in a blaze of glory. Very interesting. It is definitely time for a new will now that we’ve been married for NINE FREEKING YEARS. We’ll have to look into that sometime soon. I don’t really care who gets what (being dead and all) as long as my son gets his fair share. Kid Kalhoun’s father died with next to nothing, and his no-account wife squandered the few thousand dollars he left (even though she had verbal instructions to give that money to the children).
She sold their shack and bought a car with the proceeds (and proceed to smash it up). Most of Mr. Kal’s relatives are sitting pretty, but he does have one sister who has one foot in the soup line, so it is nice to know he could help her long-term situation should the ultimate misfortune befall us.
I agree with your decision to see a lawyer right away, as this is not a correct statement of Illinois law. Also, online advice is inherently risky and unreliable, even from a lawyer licensed in your state. (So ignore everything I say, other than the part above about seeing someone in person.)
As a point of general information that may be interest to people reading this thread (but not to be considered legal advice that should be relied on by anyone in his/her real life situation), if the decedent has a child and a surviving spouse, and no will, the child and spouse each get half of the estate. 755 ILCS 5/2-1
Also, the comment in this thread about deaths in a common disaster is not completely accurate. If one of you survives for a while, even for a short time, the estate would pass to the survivor and then to his/her heirs, assuming no wills. Wills generally address this point and change this automatic rule.
Disclaimer: Yes, IAAL. I’m even licensed in Illinois. But I’m not your lawyer, and you aren’t my client. It’s impossible to give complete, reliable legal advice online. See a lawyer licensed in your state for that.
Agreed.
No comment, except that I agree that state laws vary.
Not every state has a common disaster rule. Even those that do don’t always address a situation where one decedent survives for even a short time. Illinois’ statute only deals with situations were there is no clear evidence of who survived. If such evidence exists, even if the survival is only for an hour, decedent 2 inherits from decedent 1.
Agreed.
No, some of this may not be correct under Illinois law, even if the deaths are exactly simultaneous. Mr. K’s siblings would only get his entire estate if his parents are no longer alive. If either is around, they’d get a share. And if the deaths are not exactly simultaneous, either Kalhoun’s son or Mr. K’s heirs would potentially lose out. (The son wouldn’t be completely frozen out, even if Kalhoun died first, as he’d get his statutory half of whatever was in her name alone. But if the house or anything else was held in joint tenancy (or tenancy by the entireties in the case of the house), he’d get none of that. Mr K’s heirs would be completely frozen out if he predeceases, even by an hour.)
Same disclaimer. Also, I repeat that laws vary from state to state.
Here, if no surviving children, it goes to the father’s siblings before the grandchildren
Wisconsin sets the survivorship at 120 hours. If the second spouse to die survives by less than 120 hours, s/he is assumed to pre-decease the spouse for inheritance purposes.
I believe “here” for you is Hawai’i. I am not a Hawai’i attorney. However, based on your prior posts, it’s clear to me that you aren’t either, and that you aren’t an attorney anywhere else.
I believe that you are incorrect, and are posting bad legal information that might mislead people. If I’m right, you should stop. If I’m wrong, please provide a cite for your assertion.
Interesting. Good illustration of how state laws differ. (In case it wasn’t clear, my comment was about Illinois law.)
Wow. I need to go to a lawyer. Probably won’t happen until after the holidays, but it’s on my list.
My cousin and her husband died simultaneously in a crash. He had kids from a prior marriage and they had children together. They resided in Colorado. The children they had together got a couple million bucks, but I’m not sure what his older children got. They had a big house and a couple businesses. The accident was the fault of a trucker who fell asleep at the wheel, so I’m sure there were awards from that as well.
Kalhoun: Yeah, get a lawyer. Do wills – one for each of you.
Random: Thank you for nailing down the Illinois situation. It’s especially of concern that, in the plane crash near-simultaneous-death example that Kalhoun gave, lllinois intestate law would depend on which one happened to die first.
I leaned over backwards to state and reiterate that I was writing in general, what many states do, usually, generally, often. Your pinning down the specifics for Illinois law was an immense help to the purpose of the thread.
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And please, keep it general and with the disclaimer that nothing in this thread should be construed as specific legal advice.
And see an attorney in your area for any specific questions you may have.
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We really got to get you a Mod Hat. Those little triangles ( < ) just don’t make it! 
Much better, IMHO.
The age of the step-child (or child) shouldn’t matter or make writing a will less important. My late father left a very modest estate, but if he hadn’t set out his living trust and all his other things it would have been an even more painful process than it was to sort everything out.