Aretha Franklin died without a will, so did Prince, Bob Marley, Jimi Hendrix and Sonny Bono.

Unfortunately, leaving lots of money for people to fight over wasn’t enough reason for them to plan. Because they did not make decisions about who should inherit, some of the court battles have gone on for more than 30 years.

Even if you do not have a will, there are certain kinds of property that will go directly to the person you named as beneficiary, such as life insurance proceeds, IRA or retirement accounts, or other “payable on death accounts.”

If you own property jointly with another person, either as spouse or with right-of-survivorship, the other person gets the asset whether or not you have a will.

Other property, though, is governed by state law if you do not give directions in a will. Simply telling people your wishes will not work.


You might think that you do not own enough to make a will worthwhile.

Perhaps, but it’s not only wealthy people who should have wills. Dying without a will basically means that you give up having control over who gets your property after your death and who will be the guardian of your minor children.

Do you really want to opt out of those extremely important decisions?

If a person dies without a will, then New York directs what happens to your money and property.

Briefly, if you have a spouse and children, the law says your spouse will receive the first $50,000 plus one-half of remaining property; the children, either kids or adults, share equally in the other half.

If there is a spouse but no children, then the spouse inherits the entire estate.

No spouse, but kids? The kids divide everything equally.

What if a person dies without a spouse or children? The law provides for that too: surviving parents receive everything; if no parent, siblings inherit it all.

Adopted children have the same inheritance rights as natural children when there is no will. Stepchildren and foster children do not inherit, unless they are named in a will.

A “significant other” is not a spouse, nor is a long-term partner, not even one who qualifies under an employer’s “domestic partner” provision for health care benefits.

If you are not legally married, you do not have the right to inherit from your partner who dies without a will.


New York does not have “common law marriage.”

Living together, even having children together, is not enough, no matter how long you have been with each other.

New York’s Domestic Partner Law does not grant inheritance rights. In very limited cases, New York recognizes a common law marriage from another state where it is legal.

In order to qualify for this, however, both parties must agree to be married, must represent to other people that they are married, and neither can be legally married to someone else.

If you love someone you are not married to and want that person to have your assets when you die, make a will.

Then there will be no question about your intentions, nor about their rights. You can do your own will, but there are important requirements, so it is smarter to have a lawyer do it.


Meet with a lawyer who is experienced in wills and estates, one who practices in Surrogates Court.

It is worth paying for an hour of time to learn your options and ask for advice about your specific situation.

Next, you will need to think about issues that may be difficult, like whether you want all of your children to inherit equally, or something different.

Does someone need extra help? Or, are you concerned about how they would spend their inheritance?

Is there someone who is not your spouse or child that you would like to leave money or property to? Should you create a trust, or joint accounts, or not?

Are there charities you would like to donate to?

Just know that avoiding these decisions means that the judge will have no choice: The law will dictate where your property goes.

That may leave out those you care about most.

Penny Clute was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.


Helpful Information from New York Courts:

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