What Is the Order of Inheritance Without a Will in New York State?

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. This guide is reviewed and updated as the Estates, Powers and Trusts Law changes.

When a New Yorker dies without a will, the Surrogate's Court does not decide who deserves the estate. The answer is fixed by statute, EPTL § 4-1.1, and the court applies it as written. This page explains that order in plain English, with dollar examples, and covers the family situations the statute does not address on its face: adopted children, children born outside marriage, half-siblings, stepchildren, a spouse who may be disqualified, and property that never passes under the intestacy rules at all. For the statutory text itself, see our annotated EPTL 4-1.1 page or the official text on the New York Senate website.

One Rule for the Whole State

Intestacy is state law. The same order of inheritance applies in Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Nassau and Suffolk, Westchester, and every upstate county. The county only matters for where the administration petition is filed: the Surrogate's Court of the county where the decedent was domiciled, meaning the place the decedent treated as a permanent home and intended to return to. A person who died in a nursing home is usually still domiciled where he or she lived before entering it. Real property located in another state passes under that state's intestacy law, not New York's.

The Order of Inheritance, Scenario by Scenario

The statute works like a ladder. The first rung that fits the family takes the entire net estate (what is left after debts, funeral costs, and administration expenses). Everyone on the rungs below receives nothing. The people who inherit are called distributees.

Married with children or other descendants

The spouse takes the first $50,000 plus one-half of the rest. The children take the other half, divided by representation (explained below). Grandchildren inherit only if their parent, the decedent's child, died first.

Example: Net estate of $500,000, survived by a spouse and two children. The spouse receives $50,000 plus half of the remaining $450,000, for a total of $275,000. The two children split $225,000, or $112,500 each.

Example with a predeceased child: Same $500,000 estate, but one of the two children died before the decedent, leaving two children of her own. The spouse still receives $275,000. The surviving child receives $112,500. The two grandchildren split their late parent's $112,500, taking $56,250 each.

If the net estate is $50,000 or less, the spouse takes all of it and the children receive nothing. The spouse, or minor children if there is no spouse, may also claim certain exempt property under EPTL § 5-3.1 before the estate is divided, including a vehicle, household furnishings, and up to $25,000 in cash, within the statutory limits.

Married, no descendants

The spouse takes everything. The decedent's parents and siblings receive nothing, no matter how close they were or how long the marriage lasted. This surprises many families. A parent who wants to protect a share for siblings or other relatives can only do so with a will.

Unmarried (or widowed or divorced) with descendants

The children take everything in equal shares, with the descendants of any predeceased child taking by representation.

Example: Net estate of $300,000, three surviving children, no spouse. Each child receives $100,000.

No spouse and no descendants

The estate passes down the following list, stopping at the first group that has a living member:

• Parents: the whole estate to the surviving parent or parents, in equal shares if both survive.
• Siblings and their descendants: if no parent survives, the whole estate to the decedent's brothers and sisters, with nieces and nephews taking by representation the share of a sibling who died first.
• Grandparents and their descendants: half to the paternal side and half to the maternal side. On each side the surviving grandparent or grandparents take; if none survive, the decedent's aunts, uncles, and first cousins on that side take by representation. If one side has no survivors, the other side takes the whole estate. Descendants more remote than first cousins do not take under this rung.
• First cousins once removed: if no one above survives, the children of the decedent's first cousins take, half per side, per capita (equal shares within the group, with no representation).

Relatives further out than first cousins once removed, such as second cousins, never inherit under New York intestacy.

No living relatives: escheat to New York State

If no distributee can be found at any rung, the estate escheats to New York State. The funds are turned over under the Abandoned Property Law and held by the State Comptroller. A relative who later proves kinship can file a claim, but by then the estate has usually been consumed by years of searching and a kinship hearing. Estates with distant or unknown heirs often require a formal kinship proceeding and an affidavit of heirship to establish the family tree.

What "By Representation" Means in New York

Most people assume that if a child dies before a parent, that child's own children simply split the share their parent would have received. That is the "per stirpes" method used in many states, and it is not New York's default. For anyone dying on or after September 1, 1992, New York uses "per capita at each generation," defined in EPTL § 1-2.16.

The rule works in two steps. First, go to the closest generation to the decedent that has at least one living member. Count one share for each living person in that generation and one share for each deceased person in that generation who left living descendants. Each living person takes a share. Second, pool the shares of the deceased members and divide that pool equally among all of their living descendants in the next generation, regardless of which branch they come from.

Example of the pooling rule: No spouse, net estate of $360,000. The decedent had three children. Child A survives. Child B died first, leaving one child. Child C died first, leaving three children. There are three shares at the children's level: A takes $120,000. The remaining $240,000 is pooled and divided equally among the four grandchildren, $60,000 each. Under a strict per stirpes system, B's one child would receive $120,000 and C's three children would receive $40,000 each. New York treats cousins in the same generation equally.

If a child dies before the decedent and leaves no descendants, that child is simply disregarded and no share is counted for him or her.

Who Counts as a Child or Descendant

Adopted children

Under Domestic Relations Law § 117, an adopted child inherits from and through the adoptive parents exactly as a biological child would. Adoption generally cuts off the right to inherit from or through the birth parents, so a child adopted out of the family does not take from the birth parent's intestate estate. There is an exception: when a child is adopted by a stepparent (the spouse of a birth parent), or by a birth grandparent or a descendant of a birth grandparent, the child keeps the right to inherit from the birth family on that side. Adult adoptions count the same as adoptions of minors.

Children born outside marriage

A non-marital child always inherits from the mother and the mother's relatives. Inheriting from the father is governed by EPTL § 4-1.2, which requires proof of paternity. The child qualifies if, among other routes, a court issued an order of filiation during the father's lifetime, the parents signed an acknowledgment of paternity under Public Health Law § 4135-b, the father signed and filed a sworn acknowledgment of paternity with the putative father registry, or paternity is established by clear and convincing evidence. Under § 4-1.2(a)(2)(C), that evidence may include a genetic marker (DNA) test or proof that the father openly and notoriously acknowledged the child as his own. After the father's death, DNA testing of the father's other relatives, or of the decedent's stored tissue, is often how this is proved. The Surrogate's Court decides these claims in a kinship or paternity hearing.

Children conceived before death and born after

A child in gestation at the decedent's death, and born alive afterward, inherits as if born during the decedent's lifetime (EPTL § 4-1.1(c)).

Stepchildren, foster children, and in-laws

Stepchildren receive nothing under New York intestacy unless the decedent legally adopted them. The same is true of foster children. A son-in-law or daughter-in-law has no intestate share, and neither does the surviving spouse of a predeceased sibling. If the decedent raised a stepchild as a son or daughter and never adopted, that child inherits nothing without a will.

Half-blood relatives

EPTL § 4-1.1(b) treats relatives of the half blood the same as relatives of the whole blood. A half-brother who shares only one parent with the decedent takes the same share as a full brother.

When a Surviving Spouse Is Disqualified

A spouse who is legally married at the moment of death normally inherits. EPTL § 5-1.2 strips that right in specific situations:

• A final judgment of divorce, annulment, or declaration of nullity recognized in New York was in effect. A divorce action that is still pending does not disqualify; the marriage must have ended before death.
• The marriage was void as incestuous or bigamous.
• The surviving spouse obtained a divorce outside New York that New York does not recognize.
• A judgment of separation was entered against the surviving spouse.
• The surviving spouse abandoned the decedent, and the abandonment continued until death.
• The surviving spouse failed or refused to support the decedent despite having the means to do so.

Abandonment is the most litigated ground. Simply living apart is not enough. The estate must prove the spouse left without justification and without the decedent's consent. A separation agreement does not itself disqualify a spouse, though it may contain a waiver of inheritance rights that has the same effect. Registered domestic partners and long-term unmarried partners are not spouses for intestacy and receive nothing.

The 120-Hour Survivorship Rule

Under EPTL § 2-1.6, a person who does not survive the decedent by at least 120 hours (five days) is treated as having died first. If spouses die in the same accident two days apart, each estate passes as though the other spouse had predeceased, which usually sends each estate to that person's own relatives. The rule does not apply if it would cause the estate to escheat to the State.

What Does Not Pass by Intestacy

EPTL § 4-1.1 only governs the probate estate: assets held in the decedent's name alone with no beneficiary designation. Many assets bypass the order of inheritance entirely:

• Joint accounts with right of survivorship: under Banking Law § 675, the surviving joint owner takes the account. See joint bank accounts and inheritance tax.
• Totten trust and payable-on-death accounts: a bank account titled "in trust for" a named person passes to that person under EPTL § 7-5.2.
• Transfer-on-death securities: brokerage accounts registered in beneficiary form pass under EPTL Article 13, Part 4.
• Life insurance and retirement accounts: IRAs, 401(k)s, and annuities go to the named beneficiary. If no beneficiary is named or the beneficiary died first, the contract or plan terms decide, and the asset often falls back into the estate. See bank accounts with no beneficiary in New York.
• Real property held as tenants by the entirety or joint tenants: the surviving co-owner takes the property automatically.
• Assets in a trust: property already titled in a living trust passes under the trust's terms.

Because of these rules, a surviving spouse who was a joint owner on the house and the bank accounts may end up with far more than the $50,000 plus one-half the statute describes, while children from an earlier marriage may receive very little.

Who Administers the Estate

Someone must petition the Surrogate's Court for letters of administration before any asset can be collected or distributed. SCPA § 1001 sets the priority: the surviving spouse first, then children, grandchildren, parents, siblings, and then other distributees, with preference among equals to the person entitled to the largest share. A person with priority can decline and consent to someone else serving. Our page on serving as administrator of an estate without a will explains eligibility, the bond requirement, and what happens when distributees disagree about who should serve. Our page on administration proceedings covers the court process from petition to final distribution.

Frequently Asked Questions

Does my spouse inherit everything if we have no children?

Yes. If a married New Yorker dies without descendants, the surviving spouse takes the entire probate estate. Parents and siblings receive nothing.

Do stepchildren inherit in New York without a will?

No. A stepchild inherits only if the decedent adopted him or her. Raising the child, paying for college, or calling the child "son" or "daughter" does not create an intestate share.

Do half-siblings inherit equally with full siblings?

Yes. New York makes no distinction between half-blood and whole-blood relatives. If siblings are the closest surviving relatives, a half-sister takes the same share as a full sister.

Can a child born outside marriage inherit from the father?

Yes, if paternity is proved under EPTL § 4-1.2. Common proof includes a filed acknowledgment of paternity, a court order of filiation, DNA evidence, or evidence that the father openly and notoriously held the child out as his own.

Does an adopted child inherit from biological parents?

Generally no. Adoption ends the right to inherit from or through the birth parents, except where the adopting parent is a stepparent, a birth grandparent, or a descendant of a birth grandparent.

What if we were separated but never divorced?

A spouse who is still legally married inherits unless disqualified under EPTL § 5-1.2. Separation alone does not disqualify. A judgment of separation entered against the surviving spouse, proven abandonment, or a signed waiver in a separation agreement can.

Does the state take the estate if there is no will?

Only if no distributee exists at any level, down to first cousins once removed. In nearly every case, a relative is found. The state takes only when a diligent search and kinship proceeding turn up no one.

Is intestacy different in New York City than upstate?

No. EPTL § 4-1.1 is a state statute. The only local difference is which county's Surrogate's Court handles the administration.

Get Help With a New York Estate That Has No Will

Working out who the distributees are gets complicated when there are children from several relationships, a predeceased child with descendants, questions about paternity or adoption, or a spouse whose status is disputed. If you are dealing with a New York estate where there is no will, we can help you determine your share and what to do next. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].

This page is general information about New York law, not legal advice for your situation. Statutes cited: EPTL §§ 1-2.16, 2-1.6, 4-1.1, 4-1.2, 5-1.2, 5-3.1, 7-5.2; Domestic Relations Law § 117; Banking Law § 675; SCPA § 1001.