Definition
Intestate succession is the process by which a deceased person's property passes to surviving relatives according to a fixed statutory scheme, rather than by the terms of a valid will. When a person dies intestate — meaning without a valid will, or with a will that has been wholly revoked or invalidated — the law steps in to distribute the estate in the decedent's place. The statute governing this distribution is typically called the laws of descent and distribution, or intestacy statutes.
The outcome is not based on the decedent's actual wishes, which are unknown or legally ineffective. Instead, the state presumes a preferred order of inheritance, generally prioritizing spouses and children, then ascending and collateral relatives, and finally the state itself (by escheat) if no qualifying heir can be found.
Intestate succession applies to the portion of an estate not governed by a valid testamentary instrument. A person may die partially intestate — for example, if a will omits certain assets, fails to include a residuary clause, or if a specific bequest lapses — in which case intestacy rules govern only the undisposed portion.
---
Common Language
Modern common usage (Wiktionary): "Intestate" means dying without having made a valid will.
Historical common usage (Webster's 1913): "Intestate" is defined as dying without a will, or not having made and left a valid will.
The common meaning captures the threshold condition — no valid will — but misses the operative legal consequence. In legal usage, "intestate succession" is not merely a description of the decedent's status; it is an active statutory mechanism that determines who inherits, in what shares, and in what priority. The common understanding stops at the door; the legal term is about everything that happens once you walk through it.
---
Core Elements
Intestate succession turns on a sequence of threshold questions that courts and probate practitioners work through in order:
1. VALIDITY OF THE WILL: Was a will executed, and does it meet formal requirements? If no will exists, or if the will is wholly void, revoked, or annulled, the entire estate passes by intestacy.
2. IDENTIFICATION OF HEIRS: Statutes define who qualifies as an heir and in what priority. Most modern codes follow a scheme roughly parallel to the Uniform Probate Code: surviving spouse, then descendants, then parents, then siblings and their descendants, then more remote collaterals.
3. SHARE DETERMINATION: The size of each heir's share depends on who else survives. The presence or absence of a surviving spouse, the number of children, and whether any children predeceased the decedent (raising questions of representation) all affect the calculation.
4. REPRESENTATION: If a direct heir predeceases the decedent, that heir's share may pass to their own descendants under doctrines of per stirpes, per capita, or per capita at each generation distribution — each producing different results and each defined differently across jurisdictions.
5. ESCHEAT: When no qualifying heir exists within the statutory degrees of kinship, the estate escheats to the state.
---
Recognized Forms
/SUBTYPES
TOTAL INTESTACY: The decedent left no valid will at all. The entire probate estate passes under the intestacy statute.
PARTIAL INTESTACY: A will exists and is valid but does not dispose of all property — through omission, lapse, or failure of a residuary clause. Only the undisposed portion passes by intestacy.
---
Why It Matters in Research
Intestate succession is one of the most jurisdictionally variable areas of private law in the corpus, and researchers must resist treating any single state's statute as representative. The Uniform Probate Code (UPC) has been adopted in whole or significant part by a number of states, but many states have retained older, divergent schemes — particularly regarding the surviving spouse's share, the treatment of half-blood relatives, and the rules of representation.
The historical corpus compounds this problem. Sources from the nineteenth and early twentieth centuries reflect a world in which real property (realty) descended by the law of descent and personal property (personalty) was distributed by the law of distribution — two parallel systems with different rules and different terminology. Modern statutes have largely unified these tracks, but historical cases and treatises often assume the distinction. A researcher reading an older equity or probate opinion must determine which track governed the property at issue.
The Louisiana Civil Code definition quoted in both Black's and Bouvier's is a civil law formulation and is not representative of common law intestacy rules. Louisiana remains a mixed jurisdiction, and its succession law follows the civilian tradition. Research focused on Louisiana sources will encounter terminology — "heirs ab intestato," "forced heirship," "legitime" — that does not map cleanly onto common law equivalents.
Adoption, non-marital children, and posthumously conceived children present recurring research traps. Statutory treatment of these relationships for intestacy purposes has changed substantially across the twentieth century. Pre-1970 sources in particular may reflect rules that have since been revised or struck down on constitutional grounds.
Researchers working in the corpus should connect intestate succession questions to the encyclopedia entry on collateral relatives, which addresses the less-intuitive portions of the statutory hierarchy — parents, siblings, and more remote kin — where jurisdictional variation is sharpest and historical sources are most likely to mislead.
---
Historical Dictionary Support
Black's Law Dictionary and Bouvier's Law Dictionary offer essentially identical definitions of intestate succession, both quoting directly from the Louisiana Civil Code (art. 1096): a succession is intestate when the deceased left no will, or when the will was revoked or annulled as irregular. The definitions are substantively correct but narrow — they establish the threshold condition without addressing the distribution rules that follow.
The agreement between Black's and Bouvier's on this point reflects the civil law source they share. Both dictionaries were written when the real/personal property distinction still structured intestacy law, and neither definition foregrounds that distinction. Researchers should not read either entry as an account of common law intestacy doctrine; both are more useful as confirmation that the term's core meaning — death without operative testamentary disposition — has remained stable, even as the statutory machinery filling that gap has changed considerably.
What the historical dictionaries miss entirely: the modern UPC framework, the constitutional cases requiring equal treatment of non-marital children, the divergent representation doctrines (per stirpes versus per capita at each generation), and any treatment of partial intestacy as a distinct and practically significant phenomenon.
---
Jurisdictional Note
Intestacy rules are purely creatures of state statute and vary substantially. The most significant divergences involve the surviving spouse's elective share versus intestate share, the rules of representation among descendants, and the treatment of relatives by half-blood. Louisiana's civil law system is the most structurally distinct; researchers working in any Louisiana probate context should treat common law intestacy principles as inapplicable unless confirmed by reference to the Civil Code directly.
---
Encyclopedia Cross-Reference
Intestate Rights of Parents, Siblings, and Collateral Relatives — The Law Mind Trusts, Estates & Probate Encyclopedia
---