Section 2-102
The intestate share of a decedent's surviving spouse is:
- (1) the entire intestate estate if:
- (i) no descendant or parent of the decedent survives the decedent; or
- (ii) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
- (2) the first $200,000, plus .75 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
- (3) the first $100,000 plus .5 of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent;
- (4) the first $100,000 plus .5 of any balance of the intestate estate, if 1 or more of the decedent's surviving descendants are not descendants of the surviving spouse.
Comment
Under this Section, if the decedent leaves no surviving descendants and no surviving parent or if the decedent does leave surviving descendants but neither the decedent nor the surviving spouse has other descendants, the surviving spouse is entitled to all of the decedent’s intestate estate.
If the decedent leaves no surviving descendants but does leave a surviving parent, the decedent’s surviving spouse receives the first $200,000 plus three-fourths of the balance of the intestate estate.
If the decedent leaves surviving descendants and if the surviving spouse (but not the decedent) has other descendants, and thus the decedent’s descendants are unlikely to be the exclusive beneficiaries of the surviving spouse’s estate, the surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate. The purpose is to assure the decedent’s own descendants of a share in the decedent’s intestate estate when the estate exceeds $100,000.
If the decedent has other descendants, the surviving spouse receives $100,000 plus one-half of the balance. In this type of case, the decedent’s descendants who are not descendants of the surviving spouse are not natural objects of the bounty of the surviving spouse.
Note that in all the cases where the surviving spouse receives a lump sum plus a fraction of the balance, the lump sums must be understood to be in addition to the exemption and allowances to which the surviving spouse is entitled under Part 4. These can add up to a minimum of $43,000.
The theory of this section is discussed in Waggoner, “Spousal Probate Rights in a Multiple Marriage Society”, 45 The Record of the Ass’n of the Bar of the City of New York 339, 344-48 (1990) (Mortimer H. Hess Memorial Lecture).
Empirical studies support the increase in the surviving spouse’s intestate share, reflected in this section. The studies have shown that testators in smaller estates (which intestate estates overwhelmingly tend to be) tend to devise their entire estates to their surviving spouses, even when the couple has children. See C. Shammas, M. Salmon & M. Bahlin, Inheritance in America from Colonial Times to the Present 184-85 (1987); M. Sussman, J. Cates & D. Smith, The Family and Inheritance (1970); Browder, “Recent Patterns of Testate Succession in the United States and England”, 67 Mich. L. Rev. 1303,1307-08 (1969); Dunham, “The Method, Process and Frequency of Wealth Transmission at Death”, 30 U. Chi. L. Rev. 241,252 (1963); Gibson, “Inheritance of Community Property in Texas-A Need for Reform”, 47 Texas L. Rev. 359, 364-66 (1969);Price, “The Transmission of Wealth at Death in a Community Property Jurisdiction”, 50 Wash. L. Rev. 277, 283, 311-17(1975). See also Fellows, Simon & Rau, “Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States”, 1978 Am. B. F. Research J. 319, 355-68; Note, “A Comparison of Iowans’ Dispositive Preferences with Selected Provisions of the Iowa and Uniform Probate Codes”, 63 Iowa L. Rev. 1041, 1091-92 (1978).
Cross Reference. See Section 2-802 for the definition of spouse, which controls for purposes of intestate succession.
Massachusetts comment
This section gives the surviving spouse a larger share than is provided by current law under section 1 of chapter 190. In doing so, it reflects the desires of most married persons, who almost always leave all of a moderate estate or at least one-half of a larger estate to the surviving spouse when a will is executed. A husband or wife who desires to leave the surviving spouse less than the share provided by this section may do so by executing a will, subject of course to possible election by the surviving spouse to take an elective share under Part 2 of this Article.
Under chapter 190, the decedent's surviving spouse received the entire intestate estate only if there were neither surviving descendants nor kindred. If there were surviving descendants, the surviving spouse took one-half of the personal and one-half of the real property. If there were no surviving descendants, but there was surviving kindred, the surviving spouse took the whole estate up to $200,000 and one-half of the remaining personal and real property.