What Happens if You Die Without a Will in Maryland?

Wills are how we instruct our family and loved ones about our wishes for what happens to our material possessions.  However, wills can also explain who you would like to care for your children if you pass, and other documents can explain what you’d like to happen to your remains and in cases of medical incapacity.  While having a will is a good idea, not everyone has one.  So what happens if you die without a will?

In Maryland, dying without a will is known as dying “intestate” (without a “testament”).  There are default rules for how your assets are divided, and these rules will hold if you do not have a properly written and executed will.  Usually, this means distributing your assets to your spouse, children, and parents (in that order), then to other particular family members if you do not have a spouse, children, or parents still living to receive your estate.

For help with your will or a will challenge, call the Maryland will and estate planning lawyers at Rice, Murtha & Psoras at (410) 694-7291.

Rules of Intestate Succession in Maryland

“Intestacy” or dying “intestate” means that you have no testament – no “last will and testament” – in place.  Wills are written to tell everyone who should take your estate – your assets – after you pass away, but not everyone has the forethought or time to have a will written.  States have a law called the “intestacy law” or the “intestate succession” act that gives the default legal rules for what happens when you die intestate.  This rule generally governs what happens to your estate if you do not have a will, and Maryland’s can be found at Md. Code, Est. and Trusts Art., § 3-101 and the following sections.

All of this is incredibly intricate, so it is important to go over the rules with our Baltimore will and estate planning lawyers to see if the intestacy system works for you or whether you should write a will to do it your own way.

Spouse’s Share

If you have a spouse, they are the first priority in distributing your estate.  Under § 3-102, we can see how much of your estate your spouse takes.

If your spouse is your only living heir, then they get your whole estate.  If your parents are still alive and you never had any children, then your spouse and your parents split the estate – but only if you’ve been married under 5 years.  Under this rule, your spouse gets the first $40,000 of your estate, then splits the rest 50/50 with your parents.  If you were married 5 or more years, then your spouse gets everything.

If you do have children or grandchildren (referred to collectively as “issue”), then the law looks at whether they are minors or not.  If you do have minor children, your spouse gets half of your estate and the children split the rest.  If your children are all grown (or passed away, leaving you grandchildren), then your spouse gets the first $40,000 and half of whatever’s left.

Children’s Share

After taking the spouse’s share out of the equation, the rest of the estate is divided among your children, if you have any, according to § 3-103.  If you never had children, skip this section.

Children and other descendants take their shares by a system called “representation.”  What you do to figure out shares by representation is look at how many kids you had overall.  Take out any children who passed away with no living children of their own.  This leaves you with 1) children who are still alive and 2) children who passed away but left you living grandchildren (or great-grandchildren).

Each of those children gets 1 share of the remaining estate, and in cases where a child already passed away, that child’s 1 share is divided among their own living children.  If your child and grandchild passed away but left you great-grandchildren, then their shares are divvied up by the great-grandchildren according to these same representation rules.

So for example, imagine you had 4 children: Adam, Beatrice, Charlie, and Dennis.  If they are all still alive, they each get 1/4 of your remaining estate.  If Dennis passed away and had no children, Adam, Beatrice, and Charlie each get 1/3.  If Dennis passed away but already had 2 children – Evan and Francis – then Adam, Beatrice, and Charlie each get 1/4, and Evan and Francis split 1/4 (so each gets 1/8).

Parents’ (and Grandparents’ and Great-Grandparents’) Shares

If you have no spouse and no children, then § 3-104 divides your estate by sending it back up your family tree.  If your spouse already got their share and you have no children, the rest will go up to your parents, too (if you were married under 5 years).

If you have living parents, then they get the whole estate, 50/50.  If only one parent is still alive, they get the whole share.

If your parents already passed away but you have siblings or nieces/nephews who are still alive, they will split the shares your parents would have taken.

If you have no parents or siblings who are still alive, then your grandparents split your estate – half to your maternal grandparents and half to your paternal grandparents.  These divide in the same way where, say, your maternal grandfather is deceased but your maternal grandmother is alive.  In that case, your maternal grandmother would take the whole maternal half and your paternal grandparents will split the other half.  If you have no grandparents but do have living aunts and uncles, they will divide the shares evenly – half to each side of the family tree.

Other Peoples’ Shares

As noted, your siblings, aunts and uncles, and therefore your nieces and nephews, cousins, great-aunts and great-uncles, and even grandnieces and grandnephews can potentially get shares of your estate if you have no closer relatives.  However, dividing assets this far down your family tree is rare.

If you have a spouse but no other blood relatives, then § 3-104(e) can send the rest of your estate to any step-children you have (i.e., your spouse’s children that you did not adopt).

If you have literally no family left, then § 3-105 gives your estate to the State of Maryland and various government agencies.

How to Include or Exclude People from Your Inheritance in Maryland

If there are any rules in this intestate succession that you do not like, then you need a will to put in place your own distribution rules.  For example, if you are not married but want to make sure that your partner gets your estate, you need a will to include them.  If you have parents or children or other family that you want to keep from getting a share of your estate, you need a will to say so.

Call Our Lawyers for Help with Your Will Today

Call (410) 694-7291 for a free case review with the Columbia will and estate planning lawyers at Rice, Murtha & Psoras.