When a person dies without a will, state intestacy law decides who inherits. These default rules are meant to reflect what most people would have wanted, but they were written for traditional families and vary considerably from state to state. A large national survey suggests that many Americans' preferences differ sharply from what the law provides.
In this TalksOnLaw interview, recorded in 2023, Joel Cohen speaks with Professor John Morley of Yale Law School, who with his colleague Professor Yair Listokin surveyed 9,000 American adults about how they would divide their property at death.
How Intestacy Works
Morley explains the difference between dying testate and intestate, why intestacy statutes function as majoritarian default rules, and how states differ on how much a surviving spouse takes when there are children, including in blended families. He discusses whether the law nudges people toward what they should want rather than what they say they want, and the role of the trusts and estates bar in shaping these rules.
What People Actually Want
The survey found that respondents would leave their spouses far less than intestacy law provides, with many choosing all or nothing, and that they would leave substantial shares to nonmarital partners, who receive nothing under intestacy. Respondents were generous to stepchildren, divided estates roughly equally between parents and siblings, and gave little to more distant relatives or charity. Women, African Americans, and people with less education and income gave less to spouses and partners. Morley discusses possible explanations, the elective share, adoption and stepchildren, and whether default rules should take account of differences by race, class, and gender.
Wills and Reform
The conversation covers why so few Americans have wills, the execution formalities that make wills harder to create than beneficiary designations, and the temporary relaxation of witnessing rules during the COVID-19 pandemic. Morley proposes reforms, including reconsidering giving spouses everything above a threshold, splitting estates between parents and siblings, and favoring stepchildren over more distant relatives, and notes that the people least likely to make wills are those whose preferences diverge most from the law.
What to Know Now
Professor Morley and Professor Listokin's two papers reporting the survey results remain available on SSRN. Fewer Americans have wills than when this conversation was recorded: a 2025 Caring.com survey found that 24% of adults have one, down from 33% in 2022. A growing number of states now permit electronic wills, which can ease the execution formalities discussed here; New York enacted an electronic wills law in December 2025 that takes effect in December 2027. For larger estates, the federal estate and gift tax exemption rose to $15 million per person in 2026 under legislation enacted in July 2025, indexed for inflation with no scheduled expiration.
