SI NY01110.515 Intestacy Laws (RTN 429, 05/2011)

A. Background

New Jersey, New York, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands have established laws regarding the order and manner in which the intestate (without a will) share of an estate must be distributed. This transmittal provides the laws for these jurisdictions. You should refer to SI NY01120.215 – Inheritances to determine when an inheritance can be considered income and a resource.

B. New Jersey

1. Surviving spouse or surviving domestic partner

The amount a surviving spouse or surviving domestic partner is entitled to varies as follows:

  1. If the decedent leaves no surviving descendants (e.g., children/grandchildren) or parent, then the surviving spouse or domestic partner is entitled to the entire intestate estate.

  2. If the decedent leaves no surviving descendants but is survived by at least one parent, then the surviving spouse or domestic partner is entitled to the first 25% of the intestate estate, but not less than $50,000 nor more than $200,000, plus three-fourths of any balance of the intestate estate.

  3. If the decedent leaves surviving descendants, all of whom are also the descendants of the surviving spouse or domestic partner, and:

    • The surviving spouse or domestic partner has no other surviving descendants, then the surviving spouse or domestic partner is entitled to the entire intestate estate.

    • The surviving spouse or domestic partner has other surviving descendants who are not descendants of the decedent, then the surviving spouse or domestic partner is entitled to the first 25% of the intestate estate, but not less than $50,000 nor more than $200,000, plus one-half of the balance of the intestate estate.

  4. If the decedent leaves one or more surviving descendants who are not also the descendants of the surviving spouse or domestic partner, then the surviving spouse or domestic partner is entitled to the first 25% of the intestate estate, but not less than $50,000 nor more than $200,000, plus one-half of the balance of the intestate estate.

2. Heirs

Any part of the intestate estate not passing to the surviving spouse or domestic partner per above, or the entire intestate estate if there is no surviving spouse or domestic partner, passes in order to the following heirs:

  1. To the decedent’s descendants by representation. “By representation” means that the portion of the estate passing to the descendants is divided into as many equal shares as there are (1) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation gets one share and the remaining shares, if any, are combined and then divided among the surviving descendants of the deceased descendants.

  2. To the decedent’s parents equally if both survive, or all to the one surviving parent.

  3. To the descendants of the decedent’s parents, or either of them by representation.

  4. To the decedent’s grandparents, then the descendants of the decedent’s grandparents, then the decedent’s step-children, then to the step-children’s descendants.

3. State of New Jersey

If there is no taker under any of the above provisions, the property in the estate is presumed abandoned and is to be handled by the State as unclaimed property.

C. New York

1. Surviving spouse

The amount a surviving spouse is entitled to varies as follows:

  1. A surviving spouse is entitled to the entire intestate estate if the decedent leaves no surviving issue (e.g., children/grandchildren).

  2. If there is surviving issue, the surviving spouse gets the first $50,000 plus one-half of the remaining intestate estate.

2. Heirs

Any part of the intestate estate not passing to the surviving spouse per above, or the entire intestate estate if there is no surviving spouse, passes in the following order:

  1. The decedent’s issue by representation. “By representation” has the same definition here as it does in the New Jersey statutes (see SI NY01110.515B.3).

  2. To the decedent’s surviving parent(s).

  3. To the parents’ surviving issue by representation.

  4. To the decedent’s surviving grandparents, then to the grandparents’ children and grandchildren, then to the grandparents’ great-grandchildren.

3. State of New York

If there is no taker under any of the above provisions, the intestate estate passes to the State.

D. Puerto Rico

Puerto Rico has conjugal partnership (a form of community property) laws. Therefore, in applying the laws of intestacy we need to consider whether the conjugal partnership or the decedent alone owned the property in question.

Generally, property owned by one spouse before marriage, or obtained by one spouse through gift/bequest during marriage, belongs to that spouse only. Generally, property purchased during the marriage with partnership property or obtained through the work of either spouse belongs to the conjugal partnership.

If the property was owned by the conjugal partnership, then at the death of one of the spouses, the partnership dissolves and the surviving spouse owns one-half of the conjugal property, and the intestacy laws control the other half. If the decedent solely owned the property, then the intestacy laws have bearing on the entire property.

1. If there is a surviving Spouse

The property owned solely by the decedent, and one-half of the conjugal property is distributed as follows:

  1. If there is one surviving descendant (e.g., child, grandchild), then the surviving spouse is entitled to one-third of the intestate estate in usufruct. The descendant inherits the remaining two-thirds of the estate outright and full title to the other one-third of the estate on the death of the surviving spouse. Usufruct is a form of life estate. It grants the recipient the right to use or enjoy the assets in question during life, but the recipient may not bequeath those assets at his/her death.

  2. If there is more than one descendant, the spouse is entitled to a share equal to that which corresponds to each one of his or her children or descendants, with the spouse taking her share in usufruct and the descendants taking the remaining estate outright and full title to the usufruct share on the death of the surviving spouse. The descendants take their shares by representation, which is defined as per stirpes (proportionally divided between beneficiaries according to their deceased ancestor’s share).

  3. If there are no surviving descendants, but there are surviving ascendants (e.g. parents, grandparents), then the surviving spouse gets one-third of the intestate estate in usufruct and the ascendants inherit the remaining two-thirds of the estate outright and full title to the other one-third of the estate on the death of the surviving spouse.

  4. If there are no surviving descendants or ascendants, but there are surviving brothers, sisters, nieces or nephews, then the surviving spouse gets one-half of the intestate estate in usufruct and the siblings or nieces or nephews inherit the remaining one-half of the estate outright and full title to the other one-half of the estate on the death of the surviving spouse.

  5. If there are no surviving descendants, ascendants, brothers, sisters, nieces or nephews, then the surviving spouse takes the entire intestate estate outright.

  6. Additional laws apply if the widow is pregnant or if the decedent has been married twice .

2. If there is no surviving spouse

The property owned solely by the decedent, and one-half of the conjugal property is distributed as follows:

  1. To the decedent’s descendants, with the children taking in equal shares and the other descendants taking by representation.

  2. To the decedent’s ancestors (e.g., parents, grandparents).

    To the decedent’s brothers and sisters, and children of deceased brothers and sisters.

  3. To the decedent’s uncles, aunts, cousins.

3. Commonwealth of Puerto Rico

If there is no taker under any of the above provisions, the intestate estate passes to the Commonwealth of Puerto Rico.

E. U.S. Virgin Islands

1. Surviving spouse

The amount a surviving spouse is entitled to varies as follows:

  1. If no descendant or parent of the decedent survives the decedent or if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent, then the surviving spouse takes the entire intestate estate.

  2. If the decedent leaves a surviving parent, but no descendant, the surviving spouse receives the first $300,000, plus three-fourths of the balance of the intestate estate.

  3. If all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent, the surviving spouse takes the first $225,000, plus one-half of any balance of the intestate estate.

  4. If one or more of the decedent’s surviving descendants are not descendants of the surviving spouse, then the surviving spouse takes the first $150,000, plus one-half of any balance of the intestate estate.

2. Heirs

Any part of the intestate estate not passing to the decedent’s surviving spouse, or the entire estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:

  1. To the decedent’s descendants by representation.

  2. To the decedent’s parents equally if both survive, or to the surviving parent if only one survives.

  3. To the descendants of the decedent’s parents or either of them by representation.

  4. If survived on both the paternal and maternal sides by one or more grandparents of descendants of grandparents: (1) half to the decedent’s paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and (2) half to the decedent’s maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by representation.

  5. If survived by one or more grandparents or descendants of grandparents on the paternal but not maternal side or vice versa, to the decedent’s relatives on the side with one or more surviving members in the manner described in Section 2-103(a)(4).

  6. If the decedent has one deceased spouse who has one or more descendants who survive the decedent, the estate or part of the estate passes to that spouse’s descendants by representation; or more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part passes to each set of descendants by representation.

3. Virgin Islands territory

If there is no taker under any of the above provisions, the intestate estate passes to the Government of the Virgin Islands.


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