A Plain-English Guide to Maryland Intestate Succession
What happens if you die in Maryland without a will?
A lot of people assume the answer is simple:
“My spouse gets everything.”
Or:
“My kids will just split it.”
Or even:
“My family knows what I want, so they’ll work it out.”
Unfortunately, that’s not how it works.
If you die without a valid will, you don’t get to decide who receives your probate estate. Your family doesn’t get to take a vote. And the court doesn’t simply decide what seems fair.
Instead, Maryland law makes the decision for you.
This is called intestate succession.
Maryland has a specific statutory formula determining which relatives inherit your probate estate when you die without a valid will. The result depends on whether you leave a spouse or registered domestic partner, children, parents, siblings, or more distant relatives.
And Maryland’s rules may produce a result very different from what you would have chosen yourself.
Maryland significantly changed its intestacy rules effective October 1, 2023, so older articles and charts may contain outdated information. The rules discussed below apply under current Maryland law.
What Does “Intestate” Mean?
A person who dies without a valid will is said to have died intestate.
Maryland’s Register of Wills defines intestate simply as dying “without a will.” Maryland’s intestacy statutes then determine who receives the portion of the deceased person’s net estate that wasn’t effectively disposed of by a will.
Think of Maryland’s intestacy statute as the default estate plan the State writes for you.
If you create your own valid estate plan, you can generally make your own decisions within the limits of the law.
If you don’t, Maryland’s default rules take over.
But there is another important concept to understand before looking at who gets what.
Intestacy Does NOT Necessarily Control Everything You Own
This is probably the biggest misconception surrounding intestate succession.
Dying without a will does not necessarily mean that Maryland’s intestacy statute determines what happens to every dollar you own.
Intestacy primarily concerns property passing through the probate estate.
Many assets can pass outside probate.
For example, property owned jointly with a right of survivorship generally passes automatically to the surviving joint owner. Maryland’s Register of Wills specifically explains that jointly owned property with survivorship rights is not controlled by the first owner’s will and instead passes automatically to the survivor.
Other assets may pass according to beneficiary designations or other non-probate arrangements.
So there are really two questions:
Question #1: Does this particular asset enter the probate estate?
If yes, then ask:
Question #2: If there is no valid will controlling it, who receives it under Maryland’s intestacy law?
That distinction is extremely important.
What Happens If You Leave a Spouse but No Children?
This is the easy one.
Under current Maryland law, if you die leaving a surviving spouse or registered domestic partner and no descendants, the surviving spouse or registered domestic partner generally receives the entire intestate estate.
For example:
John dies without a will.
John is married to Susan.
John has no children.
John has a $500,000 net probate estate.
Under Maryland intestacy law, Susan generally receives:
$500,000.
That result is probably consistent with what many married people would expect.
But things become much more interesting once children enter the picture.
What If You’re Married and Have Minor Children?
Suppose you die leaving both:
- a surviving spouse or registered domestic partner; and
- at least one minor child.
Maryland generally divides the intestate estate:
50% to the surviving spouse or registered domestic partner
and
50% to the children.
The children divide their share according to Maryland’s rules.
This can produce a result that surprises parents.
Imagine Michael and Jennifer are married and have two children, ages 8 and 12.
Michael dies without a will with a $1 million net probate estate.
Assuming the intestacy rules control the entire amount, the basic division would be:
Jennifer: $500,000
Children’s side: $500,000
That’s very different from:
“Everything goes to my spouse, who will take care of our kids.”
Maryland doesn’t simply assume that’s what Michael wanted.
And because the children are minors, additional issues can arise concerning how their property is held and managed.
A properly drafted estate plan could instead establish trusts containing detailed instructions about how assets should be managed for children.
Intestacy doesn’t give you that same opportunity to customize the plan.
What If You’re Married and All Your Children Are Adults?
This is where Maryland’s newer law is particularly important.
Suppose you die leaving:
- a spouse or registered domestic partner;
- children;
- all of the children are adults; and
- every one of those children is also a child of the surviving spouse or registered domestic partner.
Under current Maryland law, the surviving spouse or registered domestic partner generally receives the entire intestate estate.
For example:
David and Karen have been married for 35 years.
They have three children together.
All three children are adults.
David dies without a will.
David’s net probate estate is $2 million.
Under current Maryland intestacy law:
Karen receives the entire $2 million.
The adult children generally receive:
$0 at David’s death.
That may be exactly what David wanted.
Or it may be completely different from what he wanted.
Perhaps David wanted $500,000 placed into trust for each child immediately.
Perhaps he wanted assets protected for grandchildren.
Perhaps he wanted part of his estate placed into a bypass trust for tax or asset-protection reasons.
Without an estate plan accomplishing those objectives, the intestacy statute isn’t going to invent them for him.
What If One of the Adult Children Is From a Prior Relationship?
Now the result changes substantially.
Suppose a person dies leaving:
- a spouse or registered domestic partner;
- no minor children;
- adult descendants; and
- at least one descendant who is not also a descendant of the surviving spouse or registered domestic partner.
The surviving spouse or registered domestic partner generally receives:
the first $100,000 + one-half of the remaining estate.
The descendants receive the balance.
This rule is especially important for blended families.
Consider an example.
Robert dies with a $1 million net intestate estate.
He leaves:
- his wife, Lisa;
- an adult daughter he shares with Lisa; and
- an adult son from a prior marriage.
There are no minor children.
Lisa generally receives the first:
$100,000.
That leaves:
$900,000.
Lisa then receives one-half of that remainder:
$450,000.
So Lisa’s total is:
$550,000.
The descendants’ side receives the remaining:
$450,000.
The precise distribution among descendants depends on Maryland’s representation rules and the family tree.
The important point is that Lisa does not automatically receive the entire estate.
Blended Families Need to Pay Particular Attention
Intestacy can be especially problematic for second marriages.
Suppose Dad has two children from his first marriage.
Dad remarries.
Dad assumes:
“My wife will get everything when I die, and when she dies everything will go equally to my children.”
There are several problems with that assumption.
First, Maryland intestacy law may not distribute Dad’s probate estate the way he expects at his death.
Second, even when property does pass to the surviving spouse, that property generally becomes subject to the surviving spouse’s own estate plan and circumstances.
The surviving spouse may later:
- change a will;
- remarry;
- spend the assets;
- make gifts;
- leave assets to different beneficiaries; or
- have an estate plan that favors her own children.
This doesn’t mean anyone has done anything wrong.
It means Dad relied on assumptions instead of creating an estate plan.
A trust can often provide much more certainty.
For example, Dad could potentially establish a trust allowing his surviving spouse to benefit from assets during her lifetime while directing the remaining property to Dad’s children after her death.
Intestacy isn’t designed to create a sophisticated individualized arrangement like that.
What If There Is No Spouse?
If someone dies without a surviving spouse or registered domestic partner, Maryland looks down the family tree first.
If the deceased person leaves descendants, the estate generally passes to those descendants according to Maryland’s representation rules.
Maryland uses the term “issue” to refer generally to qualifying lineal descendants. The statutory definition can include children and more remote descendants under the applicable rules.
For a simple example:
Mom is unmarried.
She has three living adult children.
She dies intestate with a $900,000 net probate estate.
Assuming there are no complicating factors, each child could generally receive:
$300,000.
But what happens if one child died before Mom?
That’s where representation becomes important.
What Happens If Your Child Dies Before You?
Suppose Mom has three children:
Anna
Ben
Chris
Ben dies before Mom, but Ben leaves two children of his own.
When Mom later dies intestate, Maryland’s rules concerning distribution by representation can allow Ben’s descendants to take through Ben’s family line rather than simply eliminating that branch of the family.
This is one reason a family tree matters enormously in intestate estates.
It isn’t always as simple as:
“Divide by the number of people who are alive.”
The relationship of each descendant to the deceased person matters.
What If You Have No Spouse and No Children?
Maryland then starts moving outward through the family tree.
If there is no surviving spouse, registered domestic partner, or issue, Maryland generally looks to the deceased person’s parents.
If both parents survive, they generally share the estate equally.
If only one survives, that parent generally receives the applicable estate.
If neither parent survives, Maryland looks to the parents’ descendants—which can mean the deceased person’s siblings and, where applicable, descendants of deceased siblings.
So imagine:
Sarah is unmarried.
She has no children.
Both parents are deceased.
Sarah has two living brothers.
Sarah dies without a will.
Her brothers may be the people who inherit under Maryland’s intestacy statute.
But Sarah may have wanted something completely different.
Perhaps she hasn’t spoken to one brother in 20 years.
Perhaps her best friend has essentially been her family.
Perhaps she wanted everything donated to an animal rescue organization.
Maryland doesn’t know that.
The intestacy statute works from legally recognized family relationships—not from an individualized assessment of who mattered most to you.
What About Nieces, Nephews and More Distant Relatives?
If a sibling died before the deceased person but left descendants, nieces and nephews can potentially inherit through that branch under Maryland’s representation rules.
If there are no qualifying parents, siblings, nieces or nephews, Maryland continues farther through the family tree.
The statute contains rules involving grandparents and descendants of grandparents.
That means intestacy can eventually produce beneficiaries the deceased person barely knew—or perhaps never met.
This illustrates one of the strangest aspects of dying without a will.
The law may prefer a distant relative over a lifelong friend simply because the relative occupies the legally preferred position on the family tree.
What About Stepchildren?
Stepchildren present another important distinction.
Being emotionally regarded as someone’s child doesn’t necessarily make that person the decedent’s “issue” for purposes of Maryland intestacy law. Maryland’s Register of Wills specifically notes that the definition of issue does not include a stepchild or foster child.
Maryland’s intestacy system does contain a later provision for stepchildren when there are no qualifying relatives in the preceding categories, but that’s very different from treating a stepchild the same as a biological or legally adopted child from the beginning.
That can matter tremendously in blended families.
Suppose you’ve raised your spouse’s child since she was two years old.
She’s now 35.
You consider her your daughter.
But you never legally adopted her.
You shouldn’t assume Maryland intestacy law will treat her exactly like your legally recognized child simply because that’s how your family has always viewed the relationship.
If you want a stepchild to inherit, say so in a properly prepared estate plan.
What Happens to Jointly Owned Property?
Now let’s return to the probate-versus-non-probate distinction.
Suppose Husband and Wife own a home together with survivorship rights.
Husband dies without a will.
The house doesn’t necessarily get divided according to the intestacy percentages we’ve discussed.
Property held in joint tenancy with right of survivorship generally passes automatically to the surviving joint owner.
That means a person could technically die intestate while having only a relatively small probate estate.
For example:
Joint house: passes to spouse.
Joint bank account: potentially passes to surviving owner depending on ownership terms.
Retirement account: may pass to the designated beneficiary.
Life insurance: may pass to the designated beneficiary.
Individually owned checking account with no beneficiary arrangement: may enter probate.
The intestacy statute generally determines who receives that last category of probate property—not necessarily all the wealth associated with the deceased person.
Probate and Estate Tax Are Different
Another common mistake is assuming that an asset outside probate is also outside the taxable estate.
Those are different questions.
Probate concerns how property is legally administered and transferred after death.
Estate tax concerns what property is included under applicable tax law when determining the taxable estate.
An asset can potentially avoid probate while still being relevant to estate-tax calculations.
That’s particularly important in Maryland because Maryland has its own estate-tax regime in addition to the federal estate-tax system.
Estate planning therefore isn’t simply about avoiding probate.
For families with substantial wealth, you have to consider:
Who receives the property?
How does it get there?
Is probate required?
Is the asset included in the taxable estate?
Will estate or inheritance tax apply?
Should the beneficiary receive the property outright or in trust?
Those are separate questions.
Who Handles the Estate If There Is No Will?
A will doesn’t just say who gets your property.
It can also nominate the person you want to administer your estate.
Without a will, Maryland law provides an order of priority for appointment.
For an intestate decedent, the surviving spouse, registered domestic partner, and children are among those given statutory priority. If necessary, Maryland’s statute continues through additional categories of potential personal representatives.
Again, the problem is loss of control.
You may know exactly which person in your family is organized, financially responsible and capable of handling an estate.
Maryland doesn’t know your family dynamics.
A will allows you to express your choice.
A Will Can Do Things Intestacy Cannot
The biggest problem with intestacy isn’t necessarily that Maryland’s rules are unreasonable.
The rules have to work for millions of different people.
The problem is that they aren’t your rules.
A thoughtfully prepared estate plan can address issues that an intestacy formula cannot personalize.
For example, you may want to decide:
- who receives your assets;
- who administers your estate;
- who should care for minor children;
- whether children receive assets outright or in trust;
- when children should receive control;
- whether a beneficiary should have access under a HEMS standard;
- how a beneficiary with financial problems should be protected;
- what happens in a blended family;
- whether a stepchild inherits;
- whether charities receive anything;
- whether a beneficiary’s inheritance should remain protected in trust; and
- how estate taxes fit into the overall plan.
Maryland’s intestacy statute isn’t designed to answer those questions according to your preferences.
“But My Family Knows What I Want”
This is one of the most dangerous assumptions in estate planning.
Suppose you repeatedly tell your daughter:
“When I’m gone, I want you to have the beach house.”
You die without a will.
Your daughter tells everyone:
“Dad always said the house was mine.”
That statement doesn’t necessarily override Maryland’s intestacy statutes, title rules, or other applicable law.
Your intentions need to be implemented through legally effective planning.
Family members may genuinely want to honor your wishes but be legally unable to do so without creating other problems.
And, of course, families don’t always agree about what Mom or Dad supposedly said.
A written estate plan can eliminate enormous uncertainty.
“I’m Married, So Why Do I Need a Will?”
Current Maryland law is certainly favorable to a surviving spouse in many common situations.
If all of your children are adults and are also children of your surviving spouse, for example, the surviving spouse generally receives the entire intestate estate.
But that still doesn’t mean intestacy accomplishes everything you want.
Maybe you don’t want everything passing outright to your spouse.
Perhaps you want some assets placed into a B Trust or bypass trust.
Perhaps you want assets protected for your children.
Perhaps you want your spouse to benefit from trust assets during life while preserving principal for the next generation.
Perhaps estate-tax planning is important.
Perhaps your spouse remarrying is a concern.
Perhaps you want children’s inheritances held in lifetime trusts rather than distributed outright.
Intestacy addresses who inherits.
Estate planning addresses the much bigger question:
How should your wealth be managed, protected and transferred for your family?
Maryland Intestacy in One Simple Chart
For deaths under Maryland’s current rules, the basic framework can be summarized this way:
| Family Situation | Basic Maryland Intestacy Result |
|---|---|
| Spouse/registered domestic partner, no descendants | Survivor generally receives 100% |
| Spouse/registered domestic partner + at least one minor child | Survivor generally receives ½; descendants receive ½ |
| Survivor + only adult children who are all children of both | Survivor generally receives 100% |
| Survivor + adult descendants, at least one not also survivor’s descendant | Survivor generally receives first $100,000 + ½ of remainder; descendants receive balance |
| No spouse/partner, but descendants | Descendants inherit |
| No spouse/partner or descendants, but parent(s) | Parent(s) inherit |
| No parents, but descendants of parents | Siblings and/or their descendants may inherit |
| No closer qualifying family | Statute proceeds to more remote family categories |
The exact result can become more complicated when family members have predeceased the decedent, so individual estates should be analyzed under the statute rather than relying solely on a summary chart.
The Bottom Line
Dying without a will in Maryland does not mean your property simply disappears or that the government automatically takes everything.
Maryland has a detailed intestate succession system determining who receives a person’s probate estate when there is no valid testamentary disposition.
For some families, the statutory result may happen to resemble what the deceased person would have wanted.
For others, it can be dramatically different.
The biggest problem with intestacy is therefore not necessarily the percentages.
It’s the loss of choice.
You don’t choose who administers your estate.
You don’t get to create customized trusts for your children through an intestacy statute.
You don’t get to decide that a stepchild should be treated exactly like your biological children.
You don’t get to build specialized protection for a beneficiary who shouldn’t receive a large inheritance outright.
You don’t get to create your own plan for a blended family.
And you don’t get to assume that everyone will simply “know what you wanted.”
Maryland already has a plan for people who die without their own estate plan.
The real question is:
Do you want Maryland’s plan—or yours?
This article is for general educational purposes only and does not constitute legal, tax, or financial advice. Maryland intestacy and estate laws can change, and the appropriate result depends on the facts of each estate, including family relationships, asset ownership, beneficiary designations and date of death. Individuals should consult a qualified Maryland estates and trusts attorney regarding their particular circumstances.
