Dying Without a Will in Idaho

Part of my Idaho Wills & Probate Overview.

By Ronald W. Brilliant, Attorney at Law · Licensed in Idaho, Nevada & California · Last reviewed: September 2026 against the Idaho Code as posted by the Idaho Legislature (July 1, 2026)

In This TopicIdaho Wills & ProbateTopic 4 of 15: Dying Without a Will

When a person dies without a will, or with a will that does not cover all of their property, Idaho law decides who inherits. Any part of an estate not effectively disposed of by will passes to the decedent’s heirs under Idaho’s intestate succession statutes (Idaho Code § 15-2-101). “Intestate” simply means without a valid will for that property.

The Idaho Code defines “heirs” as the persons, including the surviving spouse, who are entitled to a decedent’s property under the statutes of intestate succession (Idaho Code § 15-1-201(22)). This page explains who those people are and what share each receives.

Community Property and Separate Property

For a married decedent, the result depends on whether property is community property or separate property. The probate code uses the definitions in Title 32 (Idaho Code § 15-1-201(6), (44)).

• Separate property is property a spouse owned before marriage, property acquired afterward by gift, bequest, devise, or descent, and property acquired with the proceeds of separate property (Idaho Code § 32-903).
• Community property is all other property acquired after marriage by either spouse (Idaho Code § 32-906(1)). Income from both separate and community property is community property, unless the conveyance or a written agreement of both spouses specifically provides otherwise (§ 32-906(1)).

Community Property Goes to the Surviving Spouse

When a married person dies without a will, the one-half of community property that belongs to the decedent passes to the surviving spouse (Idaho Code § 15-2-102(b)(1)). The code says the same thing another way: in the absence of a will, the decedent’s share of community property devolves to the surviving spouse (Idaho Code § 15-3-101).

Even so, community property under the decedent’s management and control is subject to the decedent’s debts and to administration (Idaho Code § 15-3-101). Property a married person acquired while living in another state can also be treated specially as “quasi-community property” (Idaho Code § 15-2-201(b)). When a married person domiciled in Idaho dies, one-half of it belongs to the surviving spouse, and the other half, if not left by will, also goes to the surviving spouse (§ 15-2-201(a)). See Spouse and Children Protections in Idaho Probate for details.

The Surviving Spouse’s Share of Separate Property

For the decedent’s separate property, the surviving spouse’s share depends on which other relatives survive (Idaho Code § 15-2-102(a)). “Issue” means all of a person’s lineal descendants of all generations, such as children and grandchildren (Idaho Code § 15-1-201(26)).

Who survives the decedent	Surviving spouse receives (separate property)	The rest passes to
Spouse, but no issue and no parent	The entire intestate estate (§ 15-2-102(a)(1))	Nothing remains
Spouse and one or both parents, but no issue	One-half (§ 15-2-102(a)(2))	The parent or parents equally (§ 15-2-103(b))
Spouse and issue of the decedent	One-half (§ 15-2-102(a)(3))	The decedent’s issue (§ 15-2-103(a))

Note that under the code, the spouse receives one-half of separate property whenever the decedent leaves any surviving issue, whether or not those issue are also the spouse’s children (§ 15-2-102(a)(3)).

Who Inherits the Rest

Whatever does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, passes in this order (Idaho Code § 15-2-103). Each step applies only if no one in the steps above it survives.

1. The decedent’s issue. If they are all of the same degree of kinship, they take equally; if not, those of more remote degree take by representation (§ 15-2-103(a)).
2. The decedent’s parent or parents, equally (§ 15-2-103(b)).
3. The issue of the parents or either of them (such as the decedent’s brothers and sisters and their descendants), by representation (§ 15-2-103(c)).
4. Grandparents or issue of grandparents. Half passes to the paternal side and half to the maternal side (§ 15-2-103(d)). On each side, the half goes to both grandparents if both survive, or to the surviving grandparent, or to the grandparents’ issue if both are deceased (§ 15-2-103(d)). If there is no surviving grandparent or issue of grandparents on one side, the entire estate passes to the relatives on the other side in the same manner (§ 15-2-103(d)).

How “Representation” Works

When the code calls for representation, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship, plus deceased persons in that same degree who left issue who survive the decedent (Idaho Code § 15-2-106). Each surviving heir in the nearest degree receives one share, and the share of each deceased person in that degree is divided among his or her issue in the same way (§ 15-2-106).

For example, suppose an unmarried decedent had two children, one living and one who died earlier leaving two children of his own. Applying § 15-2-106, the estate is divided into two shares: the living child takes one share, and the deceased child’s share is divided between his two children.

Who Counts as a Child or Relative

The code includes several rules about family relationships for intestate succession:

• Adopted children. An adopted person is a child of the adopting parent and not of the natural parents (Idaho Code § 15-2-109(a)). But adoption of a child by the spouse of a natural parent does not affect the relationship between the child and that natural parent, or between the child and a deceased, undivorced natural parent (§ 15-2-109(a)).
• Children born out of wedlock. Such a child is a child of the mother (§ 15-2-109(b)). The child is also a child of the father if the parents participated in a marriage ceremony before or after the birth, even if the attempted marriage is void, or if paternity is established by an adjudication before the father’s death or by clear and convincing proof afterward (§ 15-2-109(b)(1), (2)).
• Limit on the father inheriting. If paternity is established only under § 15-2-109(b)(2), the father and his kindred cannot inherit from or through the child unless the father openly treated the child as his and did not refuse to support the child (§ 15-2-109(b)(2)).
• Stepchildren and foster children. The code’s definition of “child” excludes a person who is only a stepchild or a foster child (Idaho Code § 15-1-201(4)).
• Half-blood relatives inherit the same share they would inherit if they were of the whole blood (Idaho Code § 15-2-107).
• Children born after death. Relatives conceived by natural or artificial means before the decedent’s death, but born within ten months after the death, inherit as if born during the decedent’s lifetime (Idaho Code § 15-2-108).
• Two lines of relationship. A person related to the decedent in two ways receives only a single share, based on the relationship that gives the larger share (Idaho Code § 15-2-114).
• Non-citizens. No one is disqualified from inheriting because he or she, or a person through whom he or she claims, is or has been an alien (Idaho Code § 15-2-112).

Heirs Must Survive by 120 Hours

A person who does not survive the decedent by 120 hours is treated as having died first for purposes of intestate succession, the homestead allowance, and exempt property (Idaho Code § 15-2-104). If the times of death cannot be determined and it cannot be shown that the heir survived by 120 hours, the heir is treated as not having survived (§ 15-2-104).

The 120-hour rule is not applied if doing so would result in the state taking the intestate estate (§ 15-2-104). A similar rule applies to gifts under a will; see How Wills Are Interpreted in Idaho.

Lifetime Gifts and Debts Owed to the Decedent

If a person dies without a will as to all of the estate, a lifetime gift to an heir counts as an “advancement” against that heir’s share only if the decedent declared it in a contemporaneous writing, or the heir acknowledged it in writing, to be an advancement (Idaho Code § 15-2-110). The gift is valued when the heir came into possession or enjoyment of it, or at the decedent’s death, whichever came first (§ 15-2-110).

If the heir who received an advancement dies before the decedent, it is not counted against that heir’s issue unless the declaration or acknowledgment says otherwise (§ 15-2-110). If an advancement is larger than the heir’s share, no refund is required (§ 15-2-110).

A debt owed to the decedent is charged only against the intestate share of the person who owes it (Idaho Code § 15-2-111). If that debtor does not survive the decedent, the debt is not counted in figuring the share of the debtor’s issue (§ 15-2-111).

People Who Cannot Inherit as a Spouse or Heir

A person who is divorced from the decedent, or whose marriage to the decedent was annulled, is not a surviving spouse unless the two later remarried and were married at the time of death (Idaho Code § 15-2-802(a)). A decree of separation that does not end the marriage is not a divorce for this purpose (§ 15-2-802(a)). Section 15-2-802(b) lists other situations, such as a party to a valid proceeding that ended with an order purporting to terminate all marital property rights (§ 15-2-802(b)(3)).

A “slayer” is any person who participates, as a principal or as an accessory before the fact, in the wilful and unlawful killing of another person (Idaho Code § 15-2-803(a)(1)). A slayer is treated as having died before the decedent for property that would have passed to the slayer under the statutes of descent and distribution (§ 15-2-803(c)).

Other Rights Still Apply

Inheritance without a will is still subject to the homestead allowance, exempt property, renunciation, the rights of creditors, the surviving spouse’s elective share, and administration (Idaho Code § 15-3-101). Those family protections are explained in Spouse and Children Protections in Idaho Probate, and creditor rights in Creditor Claims in Idaho Probate.

Some property may not pass through the estate at all. See Nonprobate Transfers in Idaho. To learn how an heir or family member starts the process, see Informal vs. Formal Probate in Idaho and Small Estate Affidavit in Idaho.

How I Can Help

When someone dies without a will, I help families sort out which property is community and which is separate, identify the heirs under Idaho’s intestate succession rules, and guide the personal representative through the probate process. Request a consultation to discuss your situation.

This page provides general information about Idaho wills and probate, based on the Idaho Code, and is not legal advice. Court rules and case law also affect these matters. Every situation is different; consult an attorney about yours. Reading this page does not create an attorney-client relationship.