When someone dies without a will in Pennsylvania, the state has already written one for them. The intestacy statute sets out exactly who inherits and in what proportions, regardless of what the person said they wanted or what the family believes was intended.
The results often aren’t what anyone expected, and the most common surprise involves the surviving spouse.
The Surviving Spouse Does Not Automatically Get Everything
Most people assume a surviving spouse inherits the entire estate. In Pennsylvania, that is true only in limited circumstances.
Where there are no surviving children and no surviving parents, the spouse takes the whole estate. That is the situation people picture.
If there are children who are also the surviving spouse’s children, the spouse receives a set dollar amount off the top plus half of the remaining estate. The children divide the other half.
Where there are children who are not the children of the surviving spouse — a second marriage with children from the first — the spouse receives half the estate with no preliminary allowance, and the children take the other half.
If no children survive but a parent of the decedent does, the spouse receives a set amount plus half the balance, and the parent takes the rest.
Why That Causes Problems
Consider a Berks County couple, Sager & Sager regularly advises, in a second marriage. The husband dies without a will, leaving a home he owned in his own name and two adult children from his first marriage.
His wife inherits half. His children inherit the other half, as co-owners of the property she lives in. She cannot sell without them, cannot refinance without them, and depends on their cooperation to remain in her own home.
Nobody intended that outcome. It is simply what the statute produces, and it happens regularly in Pennsylvania.
Where There Is No Spouse
The estate passes down a defined order. Children first, with a deceased child’s share passing to their own children. If there are no descendants, it passes to the parents. If there are no parents, it passes to siblings and their descendants. Then to grandparents, and then to aunts, uncles and their children.
Where no relative within the statutory scheme can be found, the estate escheats to the Commonwealth. That is rare, but it happens.
Adopted children inherit as biological children do. Stepchildren who were never adopted inherit nothing, regardless of how the family functioned in practice. That outcome regularly surprises people.
The Rules for Unmarried Partners
Pennsylvania abolished common law marriage for relationships formed after a cutoff date, and a partner who is not a legal spouse has no intestate rights at all.
A couple who lived together for decades, shared expenses, and raised children together are strangers under the intestacy statute. The surviving partner inherits nothing unless assets were jointly titled or a beneficiary designation named them.
And where such a partner does inherit through a designation, they are taxed at Pennsylvania’s highest inheritance tax rate.
For unmarried couples, having a will is not optional planning. It is the only thing standing between the survivor and complete exclusion.
Intestacy Does Not Reduce the Tax
Dying without a will does not affect Pennsylvania inheritance tax, and in several respects it makes the bill worse.
The rates still depend on each recipient’s relationship to the decedent. Because intestacy pushes property down a fixed line of descent, it can send assets to siblings, nieces, or nephews who are taxed at substantially higher rates than children.
A person with no spouse or children whose estate passes to siblings under intestacy generates a materially larger tax bill than the same estate directed by will to a charity, or structured to take advantage of exemptions. The statute does not optimize anything — it simply distributes.
Someone Still Has to Administer the Estate
Dying without a will does not avoid probate. It removes the ability to choose who handles it.
A relative petitions the Register of Wills in Reading for letters of administration, in a statutory order of priority. Where several relatives have equal standing and disagree, the Register may have to resolve the matter, which introduces conflict at the outset.
The administrator may also be required to post a bond, a requirement that an executor named in a will is frequently excused from. That is a real cost the estate bears, and it exists precisely because nobody was chosen in advance.
Half-Blood Relatives and Complicated Families
The statute produces some outcomes that families find genuinely surprising.
In Pennsylvania, half-siblings generally inherit on the same footing as full siblings. A half-brother nobody had seen in thirty years takes the same share as a sibling who provided daily care.
Children born outside marriage inherit from a father where paternity was established under the applicable rules. Where it was not, a claim may still be possible, but it becomes an evidentiary matter at exactly the moment the person who could resolve it is gone.
A person who murders the decedent is barred from inheriting under the slayer rule. Beyond that, conduct is irrelevant — an estranged child who cut off contact for decades inherits identically to one who cared for the parent through a final illness. Families find this the hardest feature of intestacy to accept, and there is no discretion in it.
Minor Children Face the Worst Outcome
Where a minor child inherits, the funds cannot simply be handed to a surviving parent or relative. A guardian of the estate generally must be appointed, with court oversight, accountings, and restrictions on how funds are used.
The child then receives whatever remains outright at eighteen, an age at which few people are equipped to manage a significant sum.
More seriously, no will means no nomination of a guardian for the children themselves. The court decides who raises them from among those who come forward. A simple will avoids that entirely.
The Spousal Elective Share
A related rule catches people who assume they can simply disinherit a spouse by will.
Pennsylvania gives a surviving spouse the right to elect against the will and take a statutory share of the estate instead of whatever the will provided. That right extends beyond probate assets to certain transfers made during life.
The election must be made within a defined period, and this is one reason a will attempting to exclude a spouse rarely accomplishes what it intends. Where the objective is a genuine departure from the default, a properly executed marital agreement is the mechanism, not silence in a will.
Family Exemption and Allowances
Pennsylvania provides a family exemption allowing a surviving spouse, or in some circumstances children or a parent living with the decedent, to claim a modest amount from the estate ahead of most creditors.
It is small relative to most estates, but it is available in both intestate and testate administrations, and families claim it less often than they should, largely because they do not know it exists.
What Intestacy Does Not Reach
Assets with beneficiary designations, jointly held property with right of survivorship, and assets in trust pass outside the intestate estate.
This produces its own distortions. A person who dies without a will but with a retirement account naming one child as the beneficiary has effectively left that child a large share. At the same time, the intestacy statute divides only what remains among all heirs. Families experience that as unfair, and there is generally no remedy.
If you do not have a will, the statute described above is your estate plan. Call Sager & Sager, and we will replace it with one you actually chose.