Concept
The United States has no unified inheritance code: the rules for intestate succession (intestacy) are set by the law of each of the fifty states, while the federal level adds only a tax on large estates. The system grew out of English common law with its freedom of testation—which is why, unlike in continental Europe, children can be disinherited here: there is no forced share for them anywhere except Louisiana. However, the surviving spouse is protected almost everywhere, and succession itself goes through court—probate.
How intestacy works
Intestate estates are administered through probate—a court procedure in which an appointed administrator collects assets, pays debts, and distributes the remainder according to the state's formula. Formulas vary, but the logic is common: the surviving spouse receives all or most if all children are common; when there are children from other relationships, the spouse gets half or a third, the rest is divided among the children. Grandchildren inherit by right of representation (per stirpes) for a deceased parent. If there is no spouse or descendants—the line passes to parents, then to siblings: almost continental succession orders, only with different shares.
A separate fork is the marital property regime. Nine states, including California and Texas, operate under community property: everything acquired during marriage belongs to the spouses equally, and the surviving spouse's "own" half is not part of the inheritance at all. In the remaining common-law states, title follows whoever the asset is registered to.
Spouse and elective share
The main contrast with Europe: children have no protection from disinheritance, but the spouse does. In common-law states, a surviving spouse bypassed by a will has the right to claim an elective share—usually about one-third of the estate (under the Uniform Probate Code, the share grows with the length of the marriage). This is the American equivalent of a forced share, but only for the spouse. The exception is Louisiana with its French roots: it has retained forced heirship for children under 24 and disabled descendants.
Federal estate tax
At the federal level, estates are taxed at rates up to 40%, but with a very high exemption. The 2025 law (One Big Beautiful Bill Act) set the exemption at $15 million per person starting in 2026—now permanent and with annual indexation; for spouses, with portability of the unused portion, up to $30 million. Therefore, estate tax really only affects very large estates, while ordinary inheritance passes without it, and even with a step-up in basis—zeroing out accumulated capital gains as of the date of death.
For a foreigner, the trap is reversed. A non-resident alien pays estate tax on US-situs assets—shares of US companies, real estate, LP interests—at the same 40% rate, but is only entitled to a $60,000 exemption, and the threshold has not been indexed for decades. Direct ownership of US securities through a broker becomes a tax mine for heirs.
By asset type
US law splits inheritance by asset type. Real estate in the USA is inherited according to the law of the state where it is located (lex situs) through a separate ancillary probate—and it also constitutes US-situs for estate tax. Movable and intangible property—money in accounts, brokerage portfolios, shares—according to the law of the decedent's domicile, although shares of US companies remain US-situs for tax purposes even in a European account. For a US domiciliary, their own law will also determine the fate of money and shares in an account at a Russian bank (they can only be collected through a Russian notary and certificate of inheritance rights anyway), while for a foreigner this account is outside the US procedure entirely.
Planning techniques
American planning revolves around two tasks: avoiding probate and—for large estates—removing assets from estate tax. The basic tool is a revocable living trust: property is transferred to a revocable trust, the settlor manages it during life, and after death assets pass to beneficiaries without court; a will is left as a pour-over backup. Irrevocable structures work against tax: an ILIT holds a life insurance policy outside the estate, a dynasty trust on GST-exemption carries capital through generations, GRAT and SLAT shift future growth to heirs. Above the exemption, you can gift $19,000 annually to each recipient (2026) without using up the exemption.
For a family with Russian roots and US assets, the emphasis is different: direct ownership is replaced by a blocker structure—a foreign company over US securities removes US-situs—and liquidity for possible tax is covered by life insurance.
When intestacy doesn't work
Intestate succession under state law does not account for actual relationships and family plans: an unregistered partner does not inherit, business is fragmented, and probate is public and slow. A will, revocable living trust, and—for an international family—a cross-border coordinated plan fix this in advance.
🧭 Check your case: Succession Navigator—which law applies, where forced shares and taxes are.
Q/A
Which state’s law governs intestate succession in the United States?
There is no single federal formula. The law of the decedent’s last domicile generally governs personal property, while real estate is governed by the law of the state where it is located, subject to each state’s conflict and procedural rules. An account or heir in another state does not alone change that analysis, and real property may require ancillary probate.
Does the surviving spouse always receive the entire estate?
No. The share depends on the state, the presence of common or other descendants or parents, and the property’s classification. In a community-property state, the survivor’s own share is separated first and only the decedent’s share passes; separate property follows different rules. A California, Texas or Uniform Probate Code formula cannot be applied nationwide.
Do an unmarried partner and a stepchild inherit automatically?
Usually not. Intestacy relies on a legally recognised marriage, a domestic partnership where the statute provides for it, and an established parent-child relationship. A stepchild who was not adopted is generally not treated as a child, although individual states have exceptions. Family status and parentage must be checked under the relevant state’s law at death.
Which assets may pass outside probate and intestacy?
Assets with a valid beneficiary designation or transfer/payable-on-death provision, joint ownership carrying a right of survivorship, and property properly transferred to a living trust commonly pass under those mechanisms rather than intestacy. The account label alone is not enough: title, ownership form, current beneficiary and state rules, including the effect of divorce, must be checked.
Can a foreign owner use the $15 million federal estate-tax exclusion?
Not necessarily. The $15 million figure is the 2026 basic exclusion under the citizen-or-estate-tax-domiciliary regime. For a decedent who was neither a citizen nor such a resident, Form 706-NA is generally required when US-situs assets exceed $60,000, subject to treaty modifications. Income-tax residence and estate-tax domicile do not automatically coincide.