Estate Planning 101: What does it mean when someone dies “intestate”?

When a person dies without a will, they are said to have died “intestate”.  So what’s the big deal?  If a person dies intestate and they have assets which must be probated, then the laws of intestacy, that is a Missouri statute, controls who gets those assets.  There are a series of contingencies in the statute, but most people would be surprised to know and in fact do not know that a surviving spouse of a decedent does not necessarily get everything belonging to the decedent.

Under Missouri law (RsMo. Section 474.010):

(1) The surviving spouse shall receive:

(a) The entire intestate estate if there is no surviving issue of the decedent;

(b) The first twenty thousand dollars in value of the intestate estate, plus one-half of the balance of the intestate estate, if there are surviving issue, all of whom are also issue of the surviving spouse;

(c) One-half of the intestate estate if there are surviving issue, one or more of whom are not issue of the surviving spouse;

So if the decedent had no children either from the current marriage or a previous marriage or relationship, the surviving spouse gets everything.  Under (b), the surviving spouse gets $20,000 plus half of the estate if they decedent had living children with the surviving spouse or (c) half if the decedent had surviving children but not through the the surviving spouse.

In reality, in most cases husbands and wives usually own everything jointly (i.e. their account says Mr. Smith and Mrs. Smith on the checks), but it is not unusual for assets to not be owned jointly and end up getting divided must differently than the surviving spouse assumes.   This underlines the importance of having a will.  A will is the decedent’s chance to opt out of the state intestacy laws and ensure that the surviving spouse gets everything if they want it that way…by simply stating that in the will.  Simple rule:  If a decedent has a will, the will controls.  If not, state intestacy laws control.  The lesson here is to always have a will!