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Laws of Descent and Distribution, or, a Headache in the Making!

Updated: Jan 7, 2022

Forensic genealogists are frequently called in to a case when a person dies intestate, (without a

will). Since a will would have named people who inherit, dying without a will can mean that no one knows who the decedent’s relatives were. Forensic genealogists determine who the relatives are and provide and contact information for them. This can be as simple as finding the addresses of the decedent’s children or spouse, or become more complicated when a person dies unmarried and without children. Who inherits then?

Laws guide who must be found

This is where Laws of Descent and Distribution come in. These are laws that determine who inherits if a person dies intestate. The interesting wrinkle in our legal system is that each state has its own laws for who inherits their assets. Having an awareness of the different state laws is important for a genealogist, essential for an attorney. The attorney will tell the genealogist how many generations to research according to these laws. The genealogist must always have these laws in the back of her mind to make sure she is locating the correct number of generations and doing her work correctly.

In general, most states rule that if a person dies without a spouse, their children inherit. If there are no children, then the decedent’s living parents inherit. If the decedent had no spouse, children or living parent, their siblings inherit, and if no siblings, then their cousins inherit. States differ widely in the percentages of the estate each party inherits, a matter essential for lawyers to understand, less so for genealogists. However, one provision genealogists must always be aware of is the following:

Different states require different numbers of generations to be researched.

For example, in Pennsylvania, if no children, siblings, or siblings’ descendants or children survive, then the uncles and aunts of the decedent inherit, and if not living, their descendants. The research stops at the grandchildren of the deceased’s uncles and aunts, which would be second cousins.[1] If the second cousin had died, for example, with living children, the genealogist would not need to find those children because only second cousins could inherit.

However, in Texas, the law stipulates that research continue until a living descendent of each family line is found, which could be several generations further away than the second cousins stipulated in Pennsylvania.[2]

When someone died matters!

The Law of Descent and Distribution goes by what the statute was at the time of the person’s death. For example, if a person died intestate in Arizona in 1957, you need to follow the Arizona law from 1957, not today’s law. Texas changed its laws of intestate succession in 1993, so if a person died in 1992, one could not rely on today’s statutes to determine who inherited.

Case in Point

Last year, I was asked to find the living descendants of the beneficiaries in a mineral rights case. The problem: the original trust was written in 1906. All the original beneficiaries had died, and I was hired to locate their descendants.

Because mineral rights are real property, I had to follow each beneficiary’s will to see to whom they had left their property. If the person who inherited the property to had died, I had to follow their will to see who they inherited their property. And, if someone died intestate, I had to figure out who got their property according to the laws of intestate succession.

In this particular case, one of the original beneficiaries, “Sally Smith,” had gotten married and moved out of state the year after the trust was written in 1906. I traced her married name, and found out that she had moved to Illinois, and then to Arkansas. She had no children, and died

intestate, so according to the Arkansas Law of Descent and Distribution in 1959, her estate went to her 8 brothers and sisters, all born around 1860. I had to locate each one of their wills or, or if they died intestate, locate their children. By the time I finished with the case, I had traced more than 200 people around the country, followed the Laws for Descent and Distribution in 12 states, and found the names and addresses for over 75 living members of the family.

Another twist

Another beneficiary in this case was a lawyer who had left his estate to his wife; they had no children born of the marriage. She died intestate in Arizona, and the law stipulated that her living child inherit. She did have a child, born of her first marriage. The mineral rights the husband had left to his wife were therefore inherited by his stepson, who was not biologically related to him at all!

This was an extremely challenging and interesting case, which involved learning the Laws of Descent and Distribution for nearly every state in the country over a 120 year period. Most cases will not be this complicated! But if you encounter a situation that involves intestate succession, North Coast Genealogy will work with your legal team will ensure that the job is done right. Knowing that your researcher is aware of the complexity of these laws can provide reassurance that the work will proceed with the care it deserves.

Katharine O'Connell is a forensic genealogist and the owner of North Coast Genealogy. Katharine has solved over 150 probate cases for clients such as national banks and estate planning attorneys.

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