Dying Without a Last Will and Testament in Washington DC, Maryland and Virginia
Succession law in the United States is state law. The District of Columbia, Maryland and Virginia sit within a few miles of each other, yet each has its own statute deciding who inherits when a person dies without a valid last will and testament. A household that lives in Bethesda, works in the District and owns a cottage in the Shenandoah Valley can be subject to all three. Depending on the jurisdiction, the same surviving spouse may receive the entire estate, two-thirds of it, or one-third.
This article compares the three intestacy regimes as they stand in 2026, together with administration, tax and cross-border questions. Several rules have changed recently: Maryland rewrote the surviving spouse’s share with effect from October 1, 2023, and both the District of Columbia and Virginia raised their small estate limits and family allowances in 2025.
Which law applies, and to which assets
Under the conflict rules followed in all three jurisdictions, succession to real estate is governed by the law applied by the courts of the place where the land lies, and succession to movable property (bank and brokerage accounts, shares, furniture, vehicles) by the law applied by the courts of the decedent’s domicile at death (Restatement (Second) of Conflict of Laws §§ 236 and 260). A Maryland domiciliary who owns a rental condominium in Arlington therefore leaves the condominium under Virginia law and everything else under Maryland law, and the Virginia property usually requires a further proceeding in Virginia.
The intestacy statutes reach only the probate estate. Property held in joint names with a right of survivorship, including real estate held by spouses as tenants by the entirety, passes to the surviving owner by operation of law. Accounts with payable-on-death or transfer-on-death designations, life insurance, retirement accounts and assets held in a revocable trust pass under their own terms. An estate held in the decedent’s sole name passes entirely under the statute. The firm’s page on asset planning using joint titles describes the limits of that approach.
The surviving spouse’s share
The spouse’s share is where the three statutes diverge most (D.C. Code § 19-302; Est. & Trusts § 3-102; Va. Code § 64.2-200). In the District of Columbia and Maryland, a registered domestic partner stands in the same position as a spouse; Virginia has no equivalent.
| Family situation at death | District of Columbia | Maryland | Virginia |
|---|---|---|---|
| No descendants and no parents | Entire estate | Entire estate | Entire estate |
| No descendants; one or both parents survive | Three-quarters; the parents take the rest | Entire estate | Entire estate |
| Descendants, all of them also the spouse’s; no minor child | Two-thirds if the spouse has no other descendants, otherwise one-half; the descendants take the rest | Entire estate | Entire estate |
| Descendants, all of them also the spouse’s; a minor child survives | Two-thirds or one-half, as in the row above | One-half | Entire estate |
| Some descendants are not the spouse’s; no minor child | One-half | First $100,000 plus one-half of the rest | One-third |
| Some descendants are not the spouse’s; a minor child survives | One-half | One-half | One-third |
Three consequences deserve attention. First, a District of Columbia spouse whose children are all from the marriage still receives only two-thirds, and the children take one-third outright, including children who are minors. Second, the Maryland rule turns on whether any child of the decedent is under 18, so the same family receives a different result depending on the children’s ages at the date of death. Deaths before October 1, 2023 remain under Maryland’s former text, which gave the spouse less in several of these situations. Third, in Virginia the spouse’s own children from an earlier relationship do not reduce the spouse’s share; only the decedent’s children from another relationship do. A Virginia spouse who is reduced to one-third may do better by claiming the elective share, which for deaths since 2017 is measured against the marital-property portion of the augmented estate (Va. Code § 64.2-308.3), and what the spouse takes by intestacy is credited against it.
Descendants, parents and the wider family
Whatever does not pass to the spouse, and the entire estate where there is no spouse, passes to the decedent’s descendants. Children take equal shares, and the descendants of a child who died first take that child’s share by representation (D.C. Code §§ 19-306 and 19-307; Est. & Trusts § 3-103; Va. Code § 64.2-200). Beyond the descendants, the order differs.
In the District of Columbia, the estate passes to the parents, then to brothers and sisters and their descendants, then to the other collateral relatives of the nearest degree. Grandparents take only where there are no collateral relatives (D.C. Code §§ 19-308 to 19-312). If no relative within the fifth degree survives, the estate escheats to the District (D.C. Code § 19-701).
In Maryland, the estate passes to the parents and then to their descendants. After that it is divided into halves for the two sets of grandparents and their descendants, and if one side has no one, the other side takes all (Est. & Trusts § 3-104). Maryland then admits stepchildren, which neither of the other jurisdictions does at this stage. Only after them does the estate escheat, to the county board of education or, where the decedent received long-term care benefits under Medicaid, to the Maryland Department of Health (Est. & Trusts § 3-105).
In Virginia, the estate passes to the parents, then to brothers and sisters and their descendants, and then in two halves to the paternal and maternal kindred without limit of degree: grandparents, then aunts and uncles and their descendants, then great-grandparents, and so on. Where the decedent has no kindred at all, the kindred of the most recent deceased spouse take, provided the marriage had not ended by divorce. Only then does the estate escheat to the Commonwealth (Va. Code §§ 64.2-200 and 64.2-201).
Family situations the statutes treat differently
Unmarried partners. A partner who is neither married to the decedent nor a registered domestic partner in the District of Columbia or Maryland inherits nothing under any of the three statutes, however long the relationship. The District of Columbia, unlike Maryland and Virginia, also recognizes common-law marriage formed within its borders. Maryland and Virginia do not permit a common-law marriage to be created locally but recognize one validly formed elsewhere, so a couple who lived together in the District on the requisite terms and later moved to Maryland may be married for inheritance purposes. Whether such a marriage exists is a question of proof and is frequently disputed.
Adopted children and children born outside marriage. Adopted children inherit from their adoptive parents as biological children do and, except after a stepparent adoption, no longer inherit from their birth parents (D.C. Code § 16-312; Est. & Trusts § 1-207). A child born outside marriage inherits from the mother and from the other parent once parentage is established (D.C. Code § 19-316; Est. & Trusts § 1-208).
Minor heirs. An intestate share passes to a minor outright. Because a minor cannot manage property, a court-appointed guardian of the property or conservator usually becomes necessary, with a bond and periodic accountings, and the child receives full control at majority. Without a will, there is also no nomination of a guardian of the person or of a trustee.
The table below summarizes the remaining differences.
| Rule | District of Columbia | Maryland | Virginia |
|---|---|---|---|
| Required survival | 120 hours, by clear and convincing evidence (§ 19-502) | 30 full days for relatives (Est. & Trusts § 3-110); a Uniform Simultaneous Death Act with a 120-hour rule takes effect October 1, 2026 | 120 hours, by clear and convincing evidence (§ 64.2-2201) |
| Relatives of the half blood | Same share as the whole blood (§ 19-315) | Same share as the whole blood (Est. & Trusts § 1-204) | Half the share of the whole blood (§ 64.2-202(B)) |
| Registered domestic partner | Treated as a spouse | Treated as a spouse | No registration; no share |
| Common-law marriage | Recognized | Recognized only if formed elsewhere | Recognized only if formed elsewhere |
| Stepchildren | No share | Take before escheat | Take only as kindred of a deceased spouse, before escheat |
| Family protection | Homestead allowance $30,000; exempt property up to $20,000; reasonable family allowance during administration (§§ 19-101.02 to 19-101.04) | Family allowance $10,000 for the spouse and $5,000 for each unmarried child under 18 (Est. & Trusts § 3-201) | Family allowance up to $30,000, or $2,500 a month for a year; exempt property up to $25,000; homestead allowance $25,000 (§§ 64.2-309 to 64.2-311) |
| Escheat | To the District, if no relative within the fifth degree | To the county board of education, or the Department of Health | To the Commonwealth |
Administration without a will
A person who dies intestate has named no personal representative, so the court (the Probate Division of the D.C. Superior Court, the Maryland Register of Wills and Orphans’ Court, or the Virginia circuit court clerk) appoints an administrator from a statutory order of priority. In the District of Columbia, the spouse or domestic partner and the children come first, followed by grandchildren, parents, siblings, other relatives and the largest creditor (D.C. Code § 20-303). Maryland gives equal first priority to the spouse, the registered domestic partner and the children (Est. & Trusts § 5-104). Virginia permits only a sole heir, or an heir holding written waivers from all the others, to qualify during the first 30 days after death; after that any heir may apply, and after 60 days a creditor or another person may do so (Va. Code § 64.2-502).
No will also means no waiver of bond. In the District of Columbia and Maryland, a bond is required unless all interested persons excuse it (D.C. Code § 20-502; Est. & Trusts § 6-102). In Virginia, the bond must be at least the value of the personal estate, and a surety is required unless all heirs serve as administrators or the estate is no larger than $35,000 (Va. Code §§ 64.2-504, 64.2-505 and 64.2-1411). The surety premium is an estate expense.
Smaller estates may use a simplified procedure. The limit is $80,000 in the District of Columbia since March 2025 (D.C. Code § 20-351), $50,000 in Maryland, or $100,000 where the spouse or registered domestic partner is the sole heir (Est. & Trusts § 5-601), and $75,000 in Virginia, where a small asset affidavit may be used once 60 days have passed since death (Va. Code § 64.2-601).
| Administrator who is not local | District of Columbia | Maryland | Virginia |
|---|---|---|---|
| Resident outside the jurisdiction | May serve after filing an irrevocable power of attorney naming the Register of Wills to receive process (§ 20-303) | May serve after designating an agent resident in Maryland to accept service (Est. & Trusts § 5-105) | May serve after consenting to service of process; a surety is required unless a resident co-administrator qualifies or the court waives it (§ 64.2-1426) |
| Foreign national | Excluded unless lawfully admitted for permanent residence (§ 20-303(b)) | Until September 30, 2026, only a permanent resident who is the decedent’s spouse, ancestor, descendant or sibling; the restriction is repealed from October 1, 2026 (2026 Md. Laws ch. 537) | No citizenship restriction; the nonresident rules apply |
For families abroad the District of Columbia rule matters most. An heir who lives in Germany or France and holds no green card cannot be appointed administrator of a District of Columbia estate, and a local administrator must be found. A fuller account of the Virginia procedure is on the firm’s page on estate settlements in Virginia, and the four American jurisdictions in which the firm settles estates are compared on its estate settlements page.
Tax consequences of intestacy
The intestacy statutes take no account of tax, and the division they impose can cost money.
Maryland inheritance tax. Maryland taxes property passing to anyone outside the exempt circle at 10 percent (Tax-General §§ 7-203 and 7-204). The spouse, a registered domestic partner, children, stepchildren and their descendants, parents, stepparents, grandparents, siblings and the spouses of children are exempt. Nieces, nephews, cousins, friends and unregistered partners are not, apart from a narrow exemption for an unregistered partner’s share of a jointly owned primary residence. Because the intestate estate of an unmarried, childless Marylander often passes to nieces and nephews, the 10 percent tax is a frequent consequence of dying without a will.
Estate taxes. For deaths in 2026, the federal basic exclusion amount is $15,000,000. The District of Columbia taxes estates above $4,988,400 at rates up to 16 percent, and Maryland taxes estates above a fixed $5,000,000 at rates up to 16 percent, with the inheritance tax credited against its estate tax. Virginia has levied no estate tax since 2007 and has no inheritance tax. Of the shares an intestacy statute creates, only the spouse’s qualifies for the marital deduction. Where the District of Columbia statute sends one-third of the estate to the children, a state estate tax that a will leaving everything to the spouse would have deferred can fall due at the first death. Disclaimers seldom solve this, because a disclaimed intestate share generally passes as though the disclaiming heir had died first, which often means to that heir’s own children.
Portability. The surviving spouse can add the unused federal exclusion of the first spouse to die only if a federal estate tax return is filed and the election made; estates not otherwise required to file have five years from death (Rev. Proc. 2022-32). Maryland allows the unused Maryland exemption to be carried over as well. An intestate estate administered without advice often files nothing, and the exclusion is lost.
A spouse who is not a United States citizen. Property passing to a spouse who is not a citizen does not qualify for the federal marital deduction unless it passes to a qualified domestic trust (IRC § 2056(d)(1) and (2)(A)). An intestate share can still be transferred to such a trust before the estate tax return is filed (IRC § 2056(d)(2)(B)), and the restriction falls away if the spouse becomes a citizen before the return is filed and remained a United States resident throughout (IRC § 2056(d)(4)). Both routes depend on action within the filing deadline. The firm’s page on estate planning for non-US citizens covers the qualified domestic trust in more detail.
Heirs and assets outside the United States
Foreign heirs. Foreign nationality does not prevent inheriting in any of the three jurisdictions. Virginia’s statute expressly allows a foreign national to acquire and hold real estate by descent, subject to a rarely invoked reciprocity provision (Va. Code § 55.1-100). The practical difficulties lie in the administration rules above and in the tax formalities of a later sale. A foreign heir who sells inherited real estate in the United States is subject to FIRPTA withholding and needs a United States taxpayer identification number to claim credit for it. The firm’s page on non-US beneficiaries covers these steps.
A Washington-area decedent with assets abroad. A court in Germany, France or another member state of the European Union applies the EU Succession Regulation (Regulation (EU) No 650/2012) to deaths since August 17, 2015. It points to the law of the decedent’s last habitual residence (Art. 21), so for a person living in the District of Columbia, Maryland or Virginia it points to the law of that jurisdiction. Because that law sends real estate to the law of the place where it lies, the Regulation accepts the reference back (Art. 34(1)(a)). Real estate in Germany or France therefore passes under German or French intestacy law, while the accounts and securities in the United States pass under the law of the domicile. The shares differ. Under German law, a spouse takes one-quarter alongside children, raised to one-half under the German statutory property regime (§§ 1931 and 1371 BGB). Under French law, a spouse of a marriage in which all children are common chooses between a life interest in the whole estate and outright ownership of one-quarter (art. 757 Code civil). The heirs then take the German property by universal succession, without an administrator, and prove their title with a certificate of inheritance (§§ 1922 and 2353 BGB) or a European Certificate of Succession.
A decedent living abroad with property in the Washington area. The position is reversed. A German or French court applies the law of the habitual residence to the whole estate, including a condominium in the District of Columbia or a house in Maryland (Art. 21 and 23). The local court applies its own intestacy statute to that real estate and requires a local proceeding before title can pass. The two answers can name different heirs in different shares. The federal estate tax adds a further layer: the estate of a nonresident who is not a citizen has an exemption equivalent of only $60,000, and the District of Columbia and Maryland estate taxes can reach real estate located there. The estate tax treaties the United States has concluded with Germany, France and other countries often allow a proportionate share of the full federal exclusion and allocate taxing rights, but they do not determine who inherits. For deaths on or after July 1, 2026, a nonresident’s intangible property is no longer subject to the Maryland inheritance tax (2026 Md. Laws ch. 504). The firm’s pages on non-US decedents and on non-US residents with US assets set out the tax rules, and the article on US persons for transfer tax purposes explains how domicile is determined.
What a last will and testament changes
A valid will replaces the statutory shares with the testator’s own division, names the personal representative, can waive bond and surety, nominates guardians for minor children and can hold a child’s inheritance in trust beyond majority. Coordinated with titles, beneficiary designations and, where appropriate, a revocable trust, it can also keep real estate in a second jurisdiction out of a separate proceeding. The following steps apply in most Washington-area households.
- Determine the domicile and list each asset by jurisdiction and by the way it passes: probate estate, joint title with survivorship, beneficiary designation or trust.
- Compare the result under the domicile’s statute with the intended division, paying particular attention to children from earlier relationships, minor children and, in the District of Columbia, the share of at least one-third that passes to the children whenever there are descendants.
- Sign a will that names a personal representative who can qualify in the jurisdiction concerned, waives bond and surety, nominates guardians and holds minors’ shares in trust.
- Where real estate lies in a second jurisdiction or abroad, decide whether it should be held in a revocable trust or covered by a will coordinated with the foreign one, so that the two laws do not produce conflicting results.
- Where the spouse is not a United States citizen, provide for a qualified domestic trust in the plan rather than relying on a post-mortem transfer.
- Where a partner is neither a spouse nor a registered domestic partner, provide for the partner by will or by title, since the statutes provide nothing.
- In Maryland, where the estate will pass to nieces, nephews or friends, provide for the 10 percent inheritance tax.
- Review the plan after any move among the three jurisdictions or abroad, after a marriage, divorce or birth, and after a change in the law, of which Maryland’s 2023 rewrite of the spouse’s share is a recent example.
The firm’s attorneys are licensed in the District of Columbia, Maryland and Virginia and advise on estate plans and estate settlements in all three, including estates with heirs or assets in Europe.
The rules of statutory succession are set out on separate pages for Maryland, Virginia, the District of Columbia, California and Germany, and compared in the firm’s overview of statutory succession.
The articles are intended for information purposes only. They should not be construed as legal advice. For a comprehensive evaluation of your individual situation please contact us at (202) 790-2500 or at info@internationalestatelaw.com for an Initial Consultation Package.
This article describes general principles and is not legal or tax advice. The result in a particular estate depends on its facts, on the date of death and on the law of the jurisdiction concerned. The figures given are those applicable in 2026.