Also known as: descent & distribution · intestate succession
Written by attorneys · grounded in primary & secondary sources — see below
The statutory rules that determine how a decedent's property passes to heirs when the decedent dies without a valid will that disposes of all assets. These rules historically distinguished descent of real property from distribution of personal property but now apply uniformly to both. The scheme identifies surviving spouses, descendants, and other relatives in a fixed order of priority and allocates shares by representation.
Deborah Dunn's will created a class gift of farmland to her descendants without specifying shares. At her death the surviving descendants included two children and three grandchildren whose parent had predeceased. The court applied the governing statute and awarded each living descendant the share that would have passed under intestate succession had Deborah died owning the land at that moment.
Diana Delgado died owning a warehouse and several vehicles. No will was found. Under the applicable statute the warehouse passed directly to her sole surviving child by operation of law. The personal representative later executed a deed only to perfect record title. The statute itself transferred ownership of both real and personal property.
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Dwight Dorsey died owning land in a state whose probate statute required foreign heirs to appear personally or post bond. The statute's application to nonresident heirs triggered constitutional review because it interfered with federal foreign-relations authority while still operating as the state's default descent and distribution scheme.
David Dawson's will directed that his residence be destroyed after his death. The court refused to enforce the condition and instead allowed the property to pass under the state's descent and distribution statute to Dawson's heirs as though he had died intestate with respect to that asset.
Demetrius Douglas died intestate survived by an acknowledged nonmarital child. The state's descent statute barred the child from inheriting. The Supreme Court held the statute unconstitutional and required that the child receive the same intestate share that a marital child would have taken under the same statute.
Dylan Duffy inherited fractional interests in allotted Indian land. A federal statute caused the interests to escheat to the tribe upon Duffy's death because they were too small to descend under ordinary rules. The Court held the statute effected a taking by eliminating the right to pass the property by descent and distribution.
Descent and distribution supplies the default statutory order of heirs when a decedent dies without a will or when the will fails to dispose of all property. A will allows the decedent to choose beneficiaries and shares. Descent and distribution imposes a fixed hierarchy beginning with the surviving spouse and descendants.
Supporting sources
Modern statutes apply the same intestate scheme to both real and personal property. Historically descent governed land while distribution governed chattels, but the Uniform Probate Code and most states now use a single set of rules for all probate assets.
Supporting sources
Any property not effectively disposed of by will passes under the descent and distribution statute to the decedent's heirs. The will controls only the assets it expressly addresses. The remainder is distributed according to the intestacy scheme.
Yes. When a class gift to descendants or issue does not specify shares, the property is divided among living class members in the proportions they would receive if the designated ancestor had died intestate owning the property at the time the gift takes effect.
Supporting sources
…this case is the constitutionality of § 12 of the Illinois Probate Act[^maj-1] which allows illegitimate children to inherit by intestate succession only from their mothers. Under Illinois law, legitimate children are allowed to inherit by intestate succession from both their mothers and their fathers.[^maj-2] I Appellant Deta…