The following are excerpts from Montana’s intestacy laws. Please reference the full body of the Montana Uniform Probate Code at the Montana Legislature’s site for any changes to those laws that may not be reflected below.
You can also open the Montana Intestacy Evaluator™ to see the distribution of a Montana intestate estate based upon unique family and financial circumstances.
72-2-111. Intestate estate
(1) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in chapters 1 through 5, except as modified by the decedent’s will.
(2) A decedent may by will expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed an intestate share.
72-2-112. Share of spouse
The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(a) no descendant or parent of the decedent survives the decedent; or
(b) 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 $300,000, plus three-fourths 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 $225,000, plus one-half 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 one or more surviving descendants who are not descendants of the decedent;
(4) the first $150,000, plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
72-2-113. Share of heirs other than surviving spouse
(1) Any part of the intestate estate not passing to the decedent’s surviving spouse under 72-2-112, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(a) to the decedent’s descendants by representation;
(b) if there is no surviving descendant, to the decedent’s parents equally if both survive or to the surviving parent;
(c) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
(d) if there is no surviving descendant, parent, or descendant of a parent and the decedent is:
(i) survived by one or more grandparents or descendants of grandparents:
(A) one-half to:
(I) the decedent’s paternal grandparents equally if both survive;
(II) the surviving paternal grandparent; or
(III) the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
(B) the other one-half to the decedent’s maternal relatives in the same manner; or
(ii) not survived by a grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate to the decedent’s relatives on the other side in the same manner as the half;
(e) if there is no surviving descendant, grandparent, or descendant of a grandparent, to the person of the closest degree of kinship with the decedent. Except as provided in subsection (2), if more than one person is of that closest degree, those persons share equally.
(2) If more than one person is of the closest degree as provided in subsection (1)(e) but they claim through different ancestors, those who claim through the nearer ancestor must receive to the exclusion of those claiming through a more remote ancestor.
72-2-114. Requirement that heir survive decedent for 120 hours
An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent’s heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under 72-2-115.
72-2-115. No taker
If there is no taker under the provisions of this chapter, the intestate estate passes to the state of Montana.
72-2-116. Representation
(1) As used in this section, the following definitions apply:
(a) “Deceased descendant”, “deceased parent”, or “deceased grandparent” means a descendant, parent, or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under 72-2-114.
(b) “Surviving descendant” means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under 72-2-114.
(2)(a) If, under 72-2-113(1)(a), a decedent’s intestate estate or a part of the intestate estate passes by representation to the decedent’s descendants, the estate or part of the estate is divided into as many equal shares as there are:
(i) surviving descendants in the generation nearest to the decedent that contains one or more surviving descendants; and
(ii) deceased descendants in the same generation who left surviving descendants, if any.
(b) Each surviving descendant in the nearest generation is allocated one share. The share of each deceased descendant in the same generation as the surviving descendant is divided in the same manner, with the subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.
(3)(a) If, under 72-2-113(1)(c) or (1)(d), a decedent’s intestate estate or a part of the intestate estate passes by representation to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part of the estate is divided into as many equal shares as there are:
(i) surviving descendants in the generation nearest the deceased parents or either of them or nearest the deceased grandparents or either of them that contains one or more surviving descendants; and
(ii) deceased descendants in the same generation who left surviving descendants, if any.
(b) Each surviving descendant in the nearest generation is allocated one share. The share of each deceased descendant in the same generation as the surviving descendant is divided in the same manner, with the subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.
72-2-117. Kindred of half blood
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
72-2-118. Afterborn heirs
An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent’s death lived 120 hours after birth, it is deemed that the individual failed to survive for the required period.
72-2-124. Parent and child relationship
(1) Except as provided in subsections (2) and (3), for the purposes of intestate succession by, through, or from a person, an individual is the child of the child’s natural parents, regardless of their marital status. The parent and child relationship may be established under Title 40, chapter 6, part 1.
(2) An adopted individual is the child of an adopting parent or parents and not of the natural parents, but adoption of a child by the spouse of either natural parent has no effect on:
(a) the relationship between the child and that natural parent; or
(b) the right of the child or a descendant of the child to inherit from or through the other natural parent.
(3) Inheritance from or through a child by either natural parent or the parent’s kindred is precluded unless that natural parent has openly treated the child as the parent’s and has not refused to support the child.
72-2-125. Parent barred from inheriting in certain circumstances
(1) A parent is barred from inheriting from or through a child of the parent if:
(a) the parent’s parental rights were terminated and the parent-child relationship was not judicially reestablished; or
(b) the child died before reaching 18 years of age and there is clear and convincing evidence that immediately before the child’s death the parental rights of the parent could have been terminated under law of this state other than this code on the basis of nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the child.
(2) For the purpose of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.