Trust & Estates: Dying Without a Will - Oklahoma Law of Intestate Succession

07.01.10

Many of us put off estate planning, thinking it's a time-consuming and emotional chore that we will have plenty of time to attend to later when we aren't so busy. Married couples often assume that everything will go to their spouses under state statutes, so there's no need to bother with an estate plan. But how do Oklahoma's statutes distribute property after death when there is no will?

Oklahoma's statute of descent and distribution (legalese for what happens to property when someone dies without a will), located at Oklahoma Statutes title 84, section 213, provides in detail who receives what from a deceased person who left no will.

The provisions respecting a deceased person who has a surviving spouse are the most complex, and probably the least likely to be consistent with what people often assume. Contrary to popular lore, the surviving spouse does not receive the entire estate. The spouse will receive all property held in joint tenancy with right of survivorship by the couple, but not the deceased's full share of property held as tenants in common or in the deceased's name alone. Only if the deceased has no descendants and no parents or siblings will the spouse inherit the entire estate.

If the deceased has no children or grandchildren, but surviving parents or siblings, the surviving spouse will receive all of the property acquired by joint industry of the couple during their marriage, but will receive only 1/3 of any separate property (i.e. inherited property, property earned by only one spouse, property received as a gift by only one spouse) of the deceased. The remaining 2/3 of the separate property could go to the parents or siblings of the deceased.

If a couple has children, it's often assumed that on death, the spouse will inherit all of the deceased's property and use it to care for herself and the couple's children. However, under the statute of descent and distribution, if the couple has children, all of whom are also the children of the surviving spouse, the spouse receives only ½ of all the property, the remainder passing to the deceased's children. If the children are minors, this makes accessing the funds received from the decedent more difficult and expensive, since they will be placed in custodial accounts. If the couple's children are grown, the deceased can only rely on his adult children's dutifulness to their living parent to ensure she is able to maintain herself in her old age with only half the wealth the couple accumulated during their lives together.

If there are any children of the deceased who are not the children of the surviving spouse, the surviving spouse may receive even less property of the estate. In that circumstance, the surviving spouse is entitled to receive a ½ interest in the joint industry property, but only an equal part of the separate property with the children. Often this spouse has less of a chance of appealing to her step-children's filial devotion for her support in her old age. Whether because it leaves too much property to a new spouse of short duration or too little to one of long-standing, the statutory arrangement is unlikely to leave either the spouse or the children happy.

With respect to the share of the estate that does not pass to a surviving spouse, or in the event there is no surviving spouse, the estate is distributed first to children. If a child has predeceased the parent, that child's children will receive equal portions of the child's share. If there are no descendants, the property will go to the deceased's parents. If no parents, the property will go to siblings. If no siblings, the property will go to grandparents. If no grandparents, then to the descendants of grandparents (aunts and uncles, then ever more-remote cousins). If no descendants of grandparents are living, then the estate passes to the next of kin, pro rata. If there are no other kindred, the estate will pass to the state of Oklahoma.

Perhaps the most inconvenient thing about the statute of descent and distribution is that it makes no provision for unrelated parties. For example, step-children, grandchildren (whose parent is still living), godchildren, and wards who may live with the deceased as part of the deceased's family during life will receive nothing from the estate after death unless they have been formally adopted. Unmarried partners also will receive nothing. Thus, for many blended or unconventional families, a will or will substitute is a must to avoid leaving children and loved ones bereft of any resources for their care.

Family relationships are unique, and the statute of descent and distribution fits very few families. No one would choose to distribute their estate this way, but by failing to make an estate plan, including a will, many people unwittingly choose exactly that.

Kassandra M. Bentley
(918) 591-5325
kbentley@dsda.com

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Rebecca represents clients primarily in labor and employment
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