What If You Die Without a Will?

My prior posts have explained the probate process and why you need a will. This post will address what may happen if you don’t have a will.  If you do not have a will, your possessions will be distributed by the court, in a probate proceeding, according to the Minnesota law governing intestate succession.

Under current Minnesota law, if you die without a will, your property will go to your closest relatives.  For those in “traditional” relationships (legally married with no prior children), their entire estate will go to their spouse.  But, if you have a blended family – children that are not also your spouse’s – your property will be divided between your spouse and those “other” children.  If you do not have a spouse or children, then your stuff will be distributed in the following order: grandchildren; parents; siblings; and then to distant relatives.

What does all this mean for a nontraditional family?

Let’s look at a hypothetical.

You and your unmarried partner have lived together for 5 years in a home that is in your name alone.  Your parents died a few years ago and have one brother with whom you haven’t spoken in 10  years. Your partner gives birth to a son (your first) but you die before the completion of the second parent adoption process. You have no will.??

Here is how intestate succession will work in this case. Because the adoption of your partner’s son was not finalized prior to death, he is not your son in the eyes of the law.  Therefore, the court will look to see if you have parents to take the estate.  You do not have any living parents so the court will look to the nearest generation to your parents and pay the estate to your brother.

What will happen here? ?Your entire estate will go to your brother.  This means that:

  • Your partner has no right to remain in the home owned only in your name
  • Your partner will not inherit anything from you
  • The child you were trying to adopt will not inherit anything from you
  • Your nontraditional family may be put in a position of fighting for the most basic possession in your home (i.e. proving she is entitled to keep your furniture, car and other personal possessions)

But that’s not all.

Your partner may not even know that the property has been given to your brother because your unmarried partner is not entitled to receive notice of the probate proceeding involving your estate.  Please take care of those you love by drafting an estate plan with an attorney who understands the unique legal needs of nontraditional families.