By Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539
Answer
If you die without a will in New York, your estate passes under the intestacy rules in EPTL 4-1.1, which distribute property in a fixed statutory order. You lose control over who receives what, who administers your estate, and who is nominated as guardian for your minor children.
How the statute distributes
In outline:
- Spouse and no children — the spouse takes everything
- Spouse and children — the spouse takes $50,000 plus half of the rest; the children divide the remainder
- Children and no spouse — the children take everything
- Neither — the statute works outward to parents, then siblings, then more distant relatives
These shares are set by EPTL 4-1.1.
What surprises people
An unmarried partner inherits nothing without a will. However long you have been together, however much you shared, intestacy does not recognize them. If you want a partner to inherit, it takes a will.
A spouse does not automatically take everything. Where there are children, the estate is split — which can leave a surviving spouse sharing assets with adult children from an earlier relationship, or with minor children whose shares are held for them.
Stepchildren you raised inherit nothing without a will, unless you adopted them.
You do not choose the administrator. The court appoints someone under a statutory order of priority, which may not be the person you would have picked.
You do not nominate a guardian in a will. For parents of minor children this is a serious consequence. A will lets you name a proposed guardian, but the court must approve the appointment and the surviving parent’s rights still matter.
What intestacy does not reach
The rules only govern assets that pass through your estate.
Retirement accounts, life insurance and payable-on-death accounts go to the named beneficiary regardless. Jointly held property with survivorship passes to the surviving owner.
So it is entirely possible to die intestate and have most of your assets pass smoothly — and the rest land somewhere you would not have chosen.
The spousal right of election
A surviving spouse in New York generally cannot be disinherited outright. They can claim an elective share — the greater of $50,000 (or the whole net estate, if smaller) or one-third of the net estate — regardless of what a will says (EPTL 5-1.1-A(a)(2)).
The exception is a valid waiver. A spouse can give up the right in a signed writing acknowledged like a deed, before or after the marriage, most commonly in a prenuptial or postnuptial agreement (EPTL 5-1.1-A(e)(2)).
The fix is not complicated
For most people, the documents that prevent all of this are a will, a power of attorney, and a health care proxy. Together they take one meeting and an execution appointment.
The cost of not having them is paid by your family, in a court proceeding, at the worst possible time.
The short version
A statute decides, in a fixed order. Without a will, unmarried partners and stepchildren get nothing. You do not pick the administrator or the guardian. Check your beneficiary designations either way.
Read more: Wills · Estate Planning · Powers of Attorney