1. There is Already a Plan for Your Estate. Did You Write It?

Intestacy creates a default plan. The question is whether it reflects your wishes.

Let us start with something that might surprise you.

Even if you have never signed a will, created a trust, or executed a power of attorney, there is a plan in place for your estate. It was written without your input, and it determines who speaks for you, who raises your children, and what happens to your legacy.

This default plan is created by state law and applied through court processes such as probate. Intestacy laws are a significant component of your default plan, yet most people have never even heard of them. Intestacy is the system of default inheritance rules that applies when someone dies without a valid will. Fewer still realize that intestacy laws trace their origins to an English Parliament act from 1670 known as The Statute of Distribution. English colonists brought that framework across the Atlantic, where it was absorbed into American common law and eventually evolved into the laws that govern your affairs today.

While the nomenclature has changed, the underlying logic has endured -- a fact that explains why the law's default answers often differ from those modern families would choose for themselves.

By the end of this article, you will begin to understand where those differences arise, how they may affect your family, and what you can do about them.

A Plan Written for Everyone Fits No One Perfectly

Every state maintains a ready-made legal framework, which includes the laws of intestacy and incapacity. These laws exist to fill the void when someone dies without a will or becomes incapacitated before leaving instructions for their care. These laws are comprehensive, they are binding, and they would apply to your estate unless you craft your own plan.

Think of it like a one-size-fits-all garment.

It was designed to cover everyone — which means it was tailored for no one in particular. It may fall in roughly the right places for some people. For others, it is entirely unflattering.

The basic operating principle of intestacy is straightforward: your assets are distributed according to your proximity to surviving relatives, measured by degrees of biological or legal closeness. Are you married? Do you have children? Are your parents still alive? Do you have siblings? The law distributes your estate according to proximity in the family tree (i.e. spouse before descendants, ascendants before collateral relatives). This mechanical formula may be practical but it does not factor in the actual dynamics of your family.

Intestacy sees family through a legal lens, not an emotional one. In New York and most other states, an unmarried partner has no inheritance rights regardless of the length or depth of the relationship. DC is a notable exception: under D.C. Code § 19-302, registered domestic partners are treated like spouses. But the protection is conditional — it requires formal registration. An informal partnership, however long and committed, remains legally invisible.

Example: Imagine Sarah and Dan, a couple who lived together for the past two decades but never married. Dan owns their home and dies unexpectedly without an estate plan. Because Sarah is not his legal spouse, she has no automatic inheritance rights under the state's intestacy laws. Instead, Dan's relatives could inherit the home by default, leaving Sarah at risk of losing the home they built their life in together.

Intestacy does not account for blended families. A stepchild you raised from birth has no automatic inheritance rights unless you legally adopted them. A spouse's children from a prior relationship may find themselves sharing your estate with a current spouse in ways no one intended or anticipated.

Intestacy does not distinguish between estranged and close relatives. A biological sibling you have not spoken to in twenty years may inherit ahead of another family member who has been present for every important moment of your life. The law measures proximity in terms of blood, not behavior.

Intestacy can produce vastly different outcomes depending on where you live. The share of a surviving spouse, the rights of unmarried partners, the treatment of half-relatives, and the threshold for triggering probate all vary by state. Outcomes depend on whether you move, own property in multiple states, or divide time between jurisdictions.

This is not a criticism of the law. It is a recognition of its limits — rules written for an abstract, average family that does not necessarily resemble yours.

What Intestacy Cannot Do For You

There are a few things worth understanding about what the law's default framework is simply not designed to handle.

Intestacy cannot account for the depth and quality of your relationships. It treats all relatives of the same degree as equal. The law does not know whether a relationship is warm or estranged, whether a person was present or absent in your life, or whether they played a role that no legal category was designed to hold. That knowledge lives with you.

Intestacy does not address incapacity. Many people assume a spouse or adult child can automatically step in to manage finances or make medical decisions if they become unable to do so. In both New York and Washington, DC, that assumption is wrong. Without a power of attorney and health care directive, your family may face a court proceeding just to get the legal authority to help you. That process is slow, expensive, and unfolds publicly — while your affairs go unattended and your family navigates a crisis without the tools they need.

Intestacy cannot voice your values. Maybe you want to leave something to a cause you care about. Maybe you want to protect a child with special needs, or ensure an inheritance is managed responsibly rather than distributed outright. The default plan has no mechanism for any of that. It distributes assets according to a formula, not a philosophy.

Why We Accept Defaults

If you have never gotten around to creating an estate plan, you are in good company.

Behavioral economists have spent decades studying why people stick with default options — even when they would be better served by changing them. Among the most influential contributors to this research was Richard Thaler, whose work on default rules was recognized with a Nobel Prize in Economics. His research helped demonstrate what is now called the status quo bias: our tendency to remain with existing arrangements not because we have concluded they are best, but because changing course requires time, attention, and effort.

The implications show up everywhere. Retirement savings participation rates rise dramatically when employees are automatically enrolled rather than required to opt in. Organ donation rates differ substantially across countries based on whether citizens must actively choose to participate or actively choose to opt out. The lesson is consistent: defaults become outcomes — not because people endorse them, but because people never get around to replacing them.

Estate planning is no different. Right now, every adult without their own plan is operating under a default. It is called intestacy. The real question is whether that default reflects what they actually want.

Sometimes it does. Even so, choosing the default on purpose is entirely different from inheriting it by accident.

Make the Plan Yours

Your default plan is already written into the laws of intestacy. The only question is whether you know what it says — and whether it suits you.

Most people who learn the specifics are surprised. Occasionally alarmed — not because the rules are outrageous, but because they bear so little resemblance to what they would actually choose. The purpose of estate planning is to replace a passive arrangement with a deliberate one.

Find Out What Your Default Plan Says

What would happen to your people, property, and priorities under the default plan you already have?

Most people have never seen the plan they are currently living under. A Foresight Session is a structured conversation designed to help you understand how New York or Washington, DC law would apply to your family, your assets, and your relationships today.

Some people leave with confirmation that their situation is simpler than they feared. Others leave with a clear picture of what they want to change and why. Either way, they leave with open eyes about a framework that has been quietly governing their lives all along.

If you've never actually looked at what your default plan says, a Foresight Session is the right place to start.

Schedule your Foresight Session at forevermorelaw.com →

Forevermore Law helps individuals and families in New York and Washington, DC replace default legal assumptions with intentional plans built around their actual lives.

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More Insights℠ is ForeverMore Law's thought leadership blog. It explores the ideas and disciplines that shape estate planning—from law and history to psychology, economics, and philosophy. If any of these ideas captured your attention, you might enjoy the following resources.

Legal Authorities

• New York Estates, Powers and Trusts Law § 4-1.1 (Intestate Distribution). New York's statute governing the distribution of property when someone dies without a valid will.

• D.C. Code § 19-301 et seq. (Intestate Succession). The District of Columbia's laws governing inheritance when someone dies without a valid will.…

Historical Sources

• The Statute of Distribution (1670). The English law that became the foundation for many modern inheritance systems throughout the common-law world.

• History of Intestate Succession (Cornell Legal Information Institute). A concise overview of the origins and development of intestacy law.

Behavioral Economics and Decision-Making

• Richard H. Thaler – Nobel Prize Podcast (Faculty Profile at Chicago Booth). An introduction to the work of the Nobel Prize-winning economist whose research helped illuminate the power of defaults and status quo bias.

• How Powerful is Status Quo Bias (Psychology Today). An accessible explanation of why people often remain with default arrangements even when alternative choices may better reflect their preferences.