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Alabama Intestate Succession
Support GuideAlabama11 min read

Alabama Intestate Succession

Who inherits under Alabama intestate succession: the spouse's share under Ala. Code 43-8-41 and the heir order in 43-8-42 when someone dies without a will.

By Settled Editorial

When an Alabama resident dies without a will, state statute decides who inherits. This guide answers one question: who gets what. It maps the distribution rules in Ala. Code §43-8-40 through §43-8-58, the intestate succession article of the Alabama Probate Code. The short version: the surviving spouse takes the entire estate only when the decedent left no children and no living parent. A surviving parent or a child changes the math, and a child from outside the marriage cuts the spouse's share to one-half.

This is the distribution side of intestacy. The process side, petitioning the probate court, obtaining letters of administration, and administering the estate, lives in the Alabama probate guide. That guide covers how an intestate estate is opened and run; this one covers who inherits from it.

What Intestate Succession Covers

Dying without a will is called dying "intestate." When that happens, no will names the beneficiaries, so Alabama statute does. Under Ala. Code §43-8-40, any part of the estate not effectively disposed of by will passes to the decedent's heirs under the rules in this article. The same rules also catch a partial gap: if a valid will fails to dispose of some property, that property passes by intestacy too.

Two carve-outs matter before you apply the shares:

  1. Only probate property passes by intestacy. Assets with a named beneficiary, payable-on-death designation, survivorship rights, or trust ownership pass outside these rules. A life insurance policy with a living named beneficiary goes to that person regardless of the heir order. To see which assets skip probate entirely, read how to avoid probate in Alabama.
  2. Small estates follow summary distribution instead. Act 2025-431 amended §43-8-40 so that a small estate, as defined in Ala. Code §43-2-691, that is being distributed by summary distribution follows that division's rules rather than ordinary intestate administration. The Alabama small estate affidavit guide covers that court-filed shortcut.

Allowances Stack on Top of the Intestate Share

Before reading the shares below, know that Alabama sets aside three protected amounts under Ala. Code §43-8-110 through §43-8-113, and each one has its own list of who qualifies:

  • a homestead allowance, $15,000 base, currently $18,800 after CPI adjustment, for the surviving spouse, or for minor and dependent children if there is no spouse
  • exempt property, $7,500 base, currently $9,400 after CPI adjustment, for the surviving spouse, or for all the children jointly if there is no spouse, including independent adult children
  • a family allowance, a reasonable amount for support of the surviving spouse and the minor children the decedent was obligated to support or in fact supported; the statute sets no cap, but the personal representative may fix it without court involvement only up to a $15,000 lump sum, currently $18,800 after CPI adjustment, or $500 in monthly installments, and the court may order more or less

The State Treasurer adjusts these amounts for inflation every three years under Ala. Code §43-8-116; the current figures apply to exemptions claimed on or after April 1, 2024. Unlike states that offset allowances against the inheritance, Alabama's allowances are in addition to the share passing by will, intestacy, or elective share. They also have priority over claims against the estate, so they come off the top before creditors and before the shares below are paid.

The Surviving Spouse Share

Ala. Code §43-8-41 sets the spouse's share by two facts: whether the decedent left surviving issue, meaning children or other descendants, and whether the decedent left a surviving parent.

Family situationSurviving spouse receivesOthers receive
No surviving issue and no surviving parentEntire intestate estateNone
No surviving issue, but a parent or parents surviveFirst $100,000 plus one-half of the balanceParents take the remainder
Surviving issue, all of whom are also issue of the spouseFirst $50,000 plus one-half of the balanceThe decedent's issue take the remainder
Surviving issue, one or more of whom are not issue of the spouseOne-half of the intestate estateThe decedent's issue take the other half

Note what the table means in practice. A married decedent's spouse does not automatically take everything. A living parent claims a piece when there are no children. Shared children move the spouse to the first $50,000 plus half. A child from a prior relationship drops the spouse to a flat one-half, with no dollar amount off the top, and the issue's half passes to all of the decedent's children and their descendants, not only the outside child. Section 43-8-41(5) adds one cap: if the estate sits in two or more states, the spouse's combined share cannot exceed the amounts this chapter allows.

Divorce or annulment generally ends surviving-spouse status, and Ala. Code §43-8-252 lists further disqualifications. Ala. Code §43-8-253 separately bars anyone who feloniously and intentionally kills the decedent from inheriting; the estate passes as if the killer predeceased.

When There Is No Surviving Spouse

The part not passing to a spouse, or the whole estate if there is no spouse, follows the fixed class order in Ala. Code §43-8-42. Each class must be empty before the next inherits.

  1. Issue of the decedent. Children and their descendants take first. Those of the same degree of kinship take equally; those of more remote degree take by representation.
  2. Parents. With no surviving issue, the estate passes to the decedent's parent or parents equally.
  3. Issue of the parents. With no issue and no parent, the estate passes to the decedent's siblings and their descendants by representation.
  4. Grandparents and their issue. With none of the above, half passes to the paternal grandparents or their issue and half to the maternal grandparents or their issue, aunts, uncles, and cousins on each side. If one side has no takers, the entire estate passes to the other side.

If a class has living members, the search stops there. The estate does not skip a living parent to reach a sibling, and it does not skip a living sibling to reach a cousin.

Representation: How a Deceased Heir's Share Passes Down

When an heir who would have inherited dies before the decedent but leaves descendants, those descendants step into that heir's place. Ala. Code §43-8-45 divides the estate into as many shares as there are surviving heirs in the nearest degree of kinship plus deceased persons in that same degree who left surviving issue. Each living heir in the nearest degree takes one share. Each deceased heir's share divides among that heir's issue the same way.

A worked example: a decedent with no spouse had three children, and one child died first leaving two children of their own. The estate divides into three shares. The two living children each take one-third. The deceased child's one-third passes to that child's two children, who split it, one-sixth each. The grandchildren divide their parent's single share; they do not each take a full child's share.

Special Rules That Change Who Counts as an Heir

A handful of short sections in the same article adjust the headcount before the shares are computed:

  • Five-day survival. An heir who fails to survive the decedent by five days is treated as having predeceased, for the homestead allowance, exempt property, and intestate succession alike (Ala. Code §43-8-43). The rule yields only where applying it would send the estate to the state.
  • Half-blood relatives take a full share. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood (Ala. Code §43-8-46). A half-sibling counts the same as a full sibling.
  • Afterborn heirs. Relatives conceived before the decedent's death but born afterward inherit as if born in the decedent's lifetime (Ala. Code §43-8-47).
  • Adopted children. An adopted person is the child of the adopting parent and not of the natural parents, except that adoption by the spouse of a natural parent does not cut the child's right to inherit from or through either natural parent (Ala. Code §43-8-48(1)). Stepchildren who were never adopted are not in the heir order.
  • Children born out of wedlock. The child always inherits from the mother. The child inherits from the father if the natural parents participated in a marriage ceremony, even a void one, or if paternity is adjudicated before the father's death or established afterward by clear and convincing proof (Ala. Code §43-8-48(2)).
  • Advancements need a writing. A lifetime gift counts against an heir's intestate share only if the decedent declared it an advancement in a contemporaneous writing or the heir acknowledged it in writing (Ala. Code §43-8-49). Undocumented gifts do not reduce anyone's share.
  • Two lines of relationship, one share. A person related to the decedent through two lines takes a single share based on the relationship producing the larger one (Ala. Code §43-8-58).

What Happens If No Heir Exists

The class order reaches a wide circle of relatives, so an estate rarely runs out of heirs. If no taker exists under the article, the intestate estate passes to the State of Alabama under Ala. Code §43-8-44. Escheat is the last resort, not the default. Dying without a will sends the estate down the family tree first, not to Montgomery.

How the Pieces Fit Together

Use this sequence to read an Alabama intestate distribution:

  1. Separate probate property from assets that pass by beneficiary designation, survivorship, or trust. Only probate property follows these rules.
  2. Check whether the estate qualifies as a small estate for summary distribution under §43-2-691; if so, that division's rules control.
  3. Take the allowances off the top for the surviving spouse or minor and dependent children, and account for valid debts.
  4. Apply the spouse share under §43-8-41 using the four scenarios above.
  5. For any portion not passing to a spouse, run the class order in §43-8-42: issue, then parents, then issue of parents, then the paternal and maternal grandparent lines.
  6. Apply representation under §43-8-45 for any deceased heir who left issue, then the special rules on survival, adoption, paternity, afterborn heirs, and advancements.

Whoever the court appoints to administer the estate still follows the executor and administrator duties that govern gathering assets, paying claims, and distributing the shares, and the estate still bears the usual Alabama probate costs. The planning fix for all of this is simple: a valid will overrides the entire heir order. The Alabama will requirements guide covers what it takes to make one.

When to Get Help

Some intestate distributions map cleanly from the statute. Others need a licensed Alabama attorney, especially when:

  • a child from a prior relationship changes the spouse's share
  • a deceased heir's branch raises a representation question
  • paternity or adoption history affects who counts as a child
  • an heir cannot be located or the family tree is unclear
  • a claimed advancement lacks a clear writing
  • the spouse weighs the intestate share against the elective share rules in §43-8-70

This guide helps you organize the source-backed shares and the right questions. A lawyer can advise on rights, disputes, and filing decisions for a specific estate.

This guide is general information about Alabama estates. It is not legal advice. Confirm anything that affects your situation with the county probate court or a licensed Alabama attorney.

Sources

Information current as of June 11, 2026

This content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Alabama can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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