You may think that if you die while you are married, everything you own will automatically go to your spouse and children. Such a transfer is not automatic, however. Michigan, like all states, has a set of laws that apply to someone who dies intestate, without a will. While the specifics will vary depending on your state’s law, in general, your spouse will receive a share of what you own, and the rest may be divided among your children or parents. Exactly how much your spouse will inherit depends on specific state law, though.

These laws of intestate succession may serve to get assets to spouse and kids, but these general laws fail in many common family situations.

First, when it comes to who will get your money and assets, most states’ laws presume that a family is made up of a married couple and their biological children. But because that is not how many families are structured, things can quickly become legally complicated.

Blended families are common in the United States these days. Unfortunately, the laws have not kept up with this shift in family structures, and absurd results can occur if you rely on intestacy as your estate plan. Stepchildren whom you helped raise but did not legally adopt may end up with no inheritance, while a soon-to-be-ex-spouse may inherit from you.

For example, Alicia and Bob marry, each having a child from a prior relationship (Alicia has a daughter, Hailey; Bob has a son, Isaac) living with them full time. During the marriage, Alicia and Bob have a child together named Madison. Alicia and Bob treat all three children the same. Yet when Alicia dies without a will or trust, her family must rely on state law to determine who receives her assets. Everything that was owned solely by Alicia is divided between Bob, Hailey, and Madison. Although treated like a son, Isaac would be entitled to nothing. This may not be the outcome Alicia would have desired. Without an estate plan, however, nothing more can be done. With a will or trust, you can control what happens to your money and assets and who will benefit from your hard work, essentially eliminating the risk of regrettable results.

Another issue with relying on state law is that none of the transfers to your loved ones happen automatically. Your family must open a probate estate with the court and go through the process specified in state law before your property can transfer out of your name and into theirs. This process can be long and costly. It is also public. Many people would prefer that an inventory of their property and the details of their family life be kept out of the public eye. Your matters can be kept private, and the time and cost of administering your affairs minimized, by creating and funding a revocable living trust while you are alive and have the legal capacity to do so.

In addition, if both parents of minor-aged children die without an estate plan, then the children are left without a legal guardian. Kids do not automatically go to family or friends such as a grandparent or grandparent, even if that is what everyone knew the parents had intended. Instead, a court will appoint someone to be the children’s guardian. In such situations, the judge seeks to act in the children’s best interests and gathers information on the parents, the children, and the family circumstances. But the decision is up to the court. The judge, following the priority listed in the state’s law, may not choose the person that you, as their parent, would have chosen. If you had created a valid will during your lifetime, you would have been able to communicate to the judge whom you would have liked to appoint as guardian.

What if you and your spouse are separated?
State law decides what happens to your money and assets if you are separated from your spouse when you die. In some states, the court ignores your separation and still considers you legally married. If the state intestacy law grants spouses a share of your property at your death, as most do, then your estranged spouse may be entitled to all or a portion of it when you die.

Also, some state laws or court orders prohibit you from disinheriting your spouse after you file for divorce but before it is finalized, unless you have a prenuptial or postnuptial agreement. Without one of these agreements, you can try to omit your spouse from your will or your trust, but state law may kick in to require that a surviving spouse is treated as being legally married to you and given a share of what you own.

If you are separated from your spouse and your divorce is pending, talk with your divorce lawyer and an estate planning attorney about your options.

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