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Intestacy: What Happens in Maine if You Don’t Have a Will

IN MAINE, IF YOU DIE WITHOUT A WILL, MAINE LAW WILL DECIDE WHO INHERITS YOUR PROPERTY

If you reside in Maine, and die without a will, your property is said to pass by “intestacy”, and Maine law will decide how your property, called your “probate estate”, will be distributed.

How much of your estate your spouse will receive depends on who else in your family survives you.

Unlike the laws of some states, under Maine’s intestacy law, your entire probate estate does not pass automatically to your surviving spouse. The share of your probate estate that your surviving spouse will receive depends on whether you leave surviving parents or “issue”. Your “issue” are your lineal descendants—your children, grandchildren, great-grandchildren, or even more remote descendants.

[NOTE: Some kinds of property typically are not part of your ” probate estate”, and Maine’s intestate laws don’t apply to such property. These include life insurance policies payable to a named beneficiary, IRAs and retirement plans that name a beneficiary; property held “in trust”; land held in joint tenancies with right of survivorship; joint and survivor bank and investment accounts, payable-on-death bank and investment accounts or negotiable securities, and annuity contracts naming a beneficiary.]

If you leave no surviving parent or “issue”, your surviving spouse receives all of your probate estate after your debts, expenses of administration, and statutory allowances (explained below) are paid.

If you leave a surviving parent but no surviving issue, your spouse receives only the first $50,000 plus one half of your probate estate after your debts, expenses of administration, and statutory allowances are paid.

If you leave no surviving parent but leave issue, all of whom are descendants of you and your spouse, your spouse receives the first $50,000 plus one half of your probate estate after your debts, expenses of administration, and statutory allowances are paid.

If you leave no surviving parent but leave surviving issue, any of whom is not your spouse’s issue, your spouse receives only half of your probate estate after payment of debts, expenses of administration and statutory allowances.

If you have no spouse, but have a “registered domestic partner”, your registered domestic partner has the same right to inherit all or part of your probate estate as a surviving spouse. A “registered domestic partner” is a person who has been identified as a registered domestic partner with the Maine Domestic Partner Registry which is maintained by the Maine Bureau of Vital Records. This provision became effective law in Maine in 2004, in the context of the continuing debate over gay marriage.

In Maine, the balance of your probate estate, after distribution to your surviving spouse or registered domestic partner as described above, is divided as follows:

  1. If you leave issue, your probate estate is divided among your issue “per capita at each generation”;
  2. If you leave no surviving issue, then the balance of your probate estate passes to your parents in equal shares;If you leave no surviving issue or parent, then the balance of your probate estate passes to the issue of your parents, “per capita at each generation”;
  3. If you leave no surviving issue or parent or issue of a parent, then the balance of your probate estate passes to your grandparents or their issue, half to the maternal side and half to the paternal side (unless there are no surviving issue on one side, in which case the rest of your probate property passes to the surviving issue).
  4. If you leave no surviving issue or parent or issue of a parent or grandparent, or issue of a grandparent but you are survived by great-grandparents or issue of great-grandparents, then the balance of your probate estate passes to the great-grandparents or their issue, half to the maternal side and half to the paternal side (unless there are no surviving issue on one side, in which case the rest of your estate passes to the surviving issue).
  5. If there are no surviving issue of great-grandparents, then the intestate estate passes to the State of Maine.

An example of how Maine’s intestate law distributes estates “per capita at each generation”:

Suppose Mary has three children: Aaron, Ben and Charlie. Aaron has one child, Aaron, Jr. Ben has two children, Ben, Jr. and Betty. Charlie has three children, Charlie, Jr., Corey and Cheryl. Mary dies without a will and all three children survive her. Aaron, Ben and Charlie each receive a one-third share of Mary’s estate.

Suppose all three children die before Mary does. There are 6 grandchildren. Each grandchild receives a one-sixth share of Mary’s estate.

Suppose Ben and Charlie die before Mary does, and Aaron survives her. Aaron receives a one-third share, and the remaining two-thirds are divided among the 5 grandchildren, being Ben and Charlie’s children.

Maine has special inheritance rules for stepchildren, adopted children and children born out of wedlock.

Maine’s Probate Code has special rules defining who is a “child” or “issue” for purposes of inheriting your estate when you die without a will. The term “child” does not include your step child or foster child. However, your relatives of half-blood take the same share as your full-blood relatives. There are also special technical rules for addressing the inheritance rights of your adopted children and children born out of wedlock.

Maine’s rules governing adopted persons or persons born out of wedlock can be quite complex and as a result you would be wise to make a will rather than rely on Maine’s intestacy law to decide these issues.

To be considered your survivor under Maine law, your spouse and relatives must have survived you by at least 5 days.

In Maine there is a 120-hour (5 day) survival period in determining your intestate heirs. A person who fails to survive you by 120 hours is deemed to have died before you.

When do a surviving spouse and children receive funds before creditors?

Maine law provides three statutory allowances for your surviving spouse and children, which allow them to receive funds before payment of unsecured creditors’ claims. These include:

  • the “homestead allowance” of $10,000 for your surviving spouse, or, if none, for your dependent children,
  • an “exempt property” allowance of $7,000 for your surviving spouse or, if none, your children, and
  • a “family allowance” of up to $1,000 per month for a year or $12,000 lump sum for the support of your surviving spouse and dependent minor children.

Maine’s Probate Court may grant a greater or lesser “family allowance” if warranted.

A spouse who is omitted from the decedent’s Will may have a right to claim a share of your estate.

In Maine, a spouse omitted from a Will may have a right to claim a share of the estate. If you die with a Will, but fail to provide for your spouse in the Will, and he or she was married to you after the Will was executed, your spouse may claim an intestate share of your probate estate just as if you had died without a Will.

[NOTE: This protection for an omitted spouse is different from the right of a surviving spouse to reject the terms of your Will executed after the marriage and claim instead an “elective share” of your “augmented estate”, a topic to be addressed in a future blog entry).

If you have or adopt children after you make your Will, Maine law will still allow those children to claim a share of your estate.

Maine law protects your children who were born or adopted after you made your Will, and who are not otherwise provided for in your Will. The child may claim an intestate share unless (1) your Will states that the omission was intentional, or (2) when you made the Will, you had other children and nonetheless gave all or most of your property to the other parent of the omitted child, or (3) you provided for the child outside of the will and demonstrated your intent that the provision was instead of a gift in the will, such intent being shown either by your statements or other evidence.

A Will helps you to provide for your family and loved ones the way you intend.

Things can become complex for your spouse and children if you die without a Will in Maine, and your estate may be distributed in ways you did not intend. Making a Will does not have to be involved or expensive. If we can help, you can contact me, Phil Hunt, at 774-2635 or at phunt@perkinsthompson.com.