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Idaho Intestate Succession
Pillar GuideIdaho13 min read

Idaho Intestate Succession

Idaho intestacy: surviving spouse gets half of separate property, all of community property. Children inherit the rest.

By Settled Editorial

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Many estates can avoid probate entirely. Assets with beneficiary designations, joint accounts, and trust assets may pass automatically without court involvement.

When an Idaho resident dies without a will, Idaho Code Title 15, Chapter 2, Part 1 decides who inherits, and it asks one question before any other: was the property community or separate? The surviving spouse takes the decedent's half of all community property, whoever else survives. Separate property goes entirely to the spouse only when no child, grandchild or parent of the decedent survives. Otherwise the spouse takes one-half of it.

There is no dollar figure anywhere in Idaho's spouse share. Many summaries online describe a "first $X plus half of the rest" rule. That rule comes from the later versions of the Uniform Probate Code, which Idaho never adopted, so it does not apply to an Idaho estate.

This page covers the distribution question: who gets what. For how the estate actually moves through court, read the Idaho probate process.

What Intestate Succession Covers

Under Idaho Code § 15-2-101, any part of an estate that a will does not effectively dispose of passes to the heirs the following sections name. That means the rules below apply in two situations: when there is no will at all, and when a will leaves some property out.

Intestate succession reaches probate property only. Assets that name their own taker skip these rules:

  • retirement accounts and life insurance with a named beneficiary
  • joint tenancy property with right of survivorship
  • payable-on-death and transfer-on-death account registrations
  • community property with right of survivorship, which Idaho Code §§ 15-6-401 and 15-6-403 let a married couple create by expressly declaring it in the deed or title
  • anything already owned by a trust

A beneficiary designation beats the heir list every time. A policy that names the decedent's sister pays the sister, even if the spouse would take everything by intestacy.

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Step One: Sort Community From Separate Property

Idaho is a community property state, so the spouse's share depends on how each asset was acquired. Here is how the Idaho Code draws the line.

Separate property. Under Idaho Code § 32-903, property a spouse owned before the marriage, property either spouse received afterward by gift, bequest, devise or descent, and property bought with the proceeds of separate property stays that spouse's separate property.

Community property. Under Idaho Code § 32-906(1), all other property acquired after marriage by either spouse is community property. The same subsection makes the income from all property, separate or community, community property too, including rents, issues and profits, unless the conveyance or a written agreement between the spouses says otherwise. That rule surprises many families. Rent from a house the decedent owned before the wedding is community property unless the couple signed an agreement making it separate.

Classification decides the outcome, so classify first. For the full set of rules, including property one spouse deeds to the other, see which property is community.

The Surviving Spouse Share

Idaho Code § 15-2-102 has two subsections, one for each kind of property.

Property and family situationSpouse receivesStatute
Community property, any familyThe decedent's one-half of the community property§ 15-2-102(b)(1)
Separate property, no surviving issue and no surviving parentThe entire intestate estate§ 15-2-102(a)(1)
Separate property, no surviving issue but a parent or parents surviveOne-half of the intestate estate§ 15-2-102(a)(2)
Separate property, surviving issueOne-half of the intestate estate§ 15-2-102(a)(3)

To see these shares applied to one family, the Idaho inheritance calculator asks who survived and splits community and separate property under § 15-2-102 and § 15-2-103.

"Issue" means descendants: children, grandchildren and further down the line.

Three consequences follow from that table.

The spouse ends up with all of the community property. The surviving spouse already owns one-half of the community. Section 15-2-102(b)(1) passes the decedent's half to the spouse as well, so no child or parent takes any community property by intestacy.

Parents can share in separate property. Idaho gives a surviving parent a stake in separate property when there are no descendants. If a married person with no children dies owning a separate-property account, the spouse takes half and the decedent's parent or parents take the other half.

Idaho does not ask whose children they are. Section 15-2-102(a)(3) gives the spouse half of the separate property whenever the decedent leaves issue. It does not matter whether the children are also the surviving spouse's children or come from an earlier relationship. The result is the same half either way.

Property the couple acquired in another state

A couple who moved to Idaho may own property bought while they lived in a common law state. Idaho Code § 15-2-201 calls it quasi-community property: property the decedent acquired while domiciled elsewhere that would have been community property if acquired in Idaho. When a married person domiciled in Idaho dies, one-half of it belongs to the surviving spouse, and the other half goes where the will directs. If the will does not dispose of it, that half also goes to the surviving spouse. Section 15-2-201(c) keeps all quasi-community property subject to the decedent's debts.

The spouse has other rights on top of the intestate share, such as the homestead allowance and exempt property, and an elective right that reaches only quasi-community property. See what the surviving spouse gets.

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Who Inherits When There Is No Spouse, or After the Spouse's Share

Idaho Code § 15-2-103 governs everything the spouse does not take, or the whole estate when no spouse survives. The heirs take in this order, and each class inherits only if no one in an earlier class survives.

  1. Issue of the decedent. If they are all the same degree of kinship, they take equally. If they are of unequal degree, the more remote ones take by representation. (§ 15-2-103(a))
  2. Parents. The parent or parents take equally. (§ 15-2-103(b))
  3. Issue of the parents. Brothers and sisters and their descendants take by representation. (§ 15-2-103(c))
  4. Grandparents and their issue. Half of the estate goes to the paternal side and half to the maternal side. On each side the grandparents take if both survive, or the surviving grandparent takes, or, if both are deceased, their issue take. If one side has no surviving grandparent or issue of a grandparent, the whole estate passes to the other side. (§ 15-2-103(d))

The list ends there. Idaho has no class for more distant relatives and no class for the children of a deceased spouse. A stepchild who was never adopted does not inherit from a stepparent under this statute.

How "By Representation" Works

Idaho Code § 15-2-106 sets the rule. 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. Each surviving heir in the nearest degree takes one share. Each deceased person's share is divided among that person's issue in the same way.

Here is how it plays out. A widowed Idaho resident dies without a will, leaving $90,000 in probate property. Two of three children survive. The third child died earlier and left two children of her own.

  • The nearest degree is the children, so the estate splits into three shares of $30,000.
  • Each surviving child takes $30,000.
  • The deceased child's $30,000 is split between her two children, $15,000 each.

Now change the facts. All three children died before the parent. One left one child and another left three; the third left none. Every surviving heir is a grandchild, all the same degree of kinship, so § 15-2-103(a) has them take equally: four grandchildren, $22,500 each.

Idaho uses this 1969 Uniform Probate Code method. Utah, next door, uses a different "per capita at each generation" method, so a summary written for Utah will not match Idaho. Under Idaho's rule, cousins in the same generation can take unequal amounts when they inherit through different parents.

Worked Example: A Blended Family

Say a married Idaho resident dies without a will. The estate holds:

  • a $300,000 house bought during the marriage with wages, titled in both names as community property with no survivorship declaration
  • a $60,000 brokerage account the decedent inherited from a parent, which is separate property under § 32-903
  • two children from an earlier marriage survive

The house first. The surviving spouse already owns one-half. Section 15-2-102(b)(1) passes the decedent's half to the spouse too, so the spouse ends up owning the whole house.

The brokerage account next. It is separate property and the decedent left issue, so § 15-2-102(a)(3) gives the spouse one-half, $30,000. The other $30,000 passes to the children under § 15-2-103(a), $15,000 each.

If the account had instead been funded with wages earned during the marriage, it would be community property and the spouse would take the decedent's half of it as well. That single classification question moves $30,000 between the spouse and the children.

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Other Rules That Change Who Counts as an Heir

120-hour survival. Under Idaho Code § 15-2-104, a person who does not survive the decedent by 120 hours is treated as having died first for intestate succession, the homestead allowance and exempt property. If the order of deaths cannot be established, the heir is treated as not having survived. The section says it does not apply where applying it would send the estate to the state.

Half-blood relatives. Under § 15-2-107, a half brother or half sister inherits the same share as a full sibling.

Children born after the death. Under § 15-2-108, a relative conceived before the death but born within ten months after it inherits as if born during the decedent's lifetime.

Adopted children. Under § 15-2-109(a), an adopted person is the child of the adopting parent and not of the birth parents. Adoption by the spouse of a birth parent does not cut off the relationship with that birth parent.

Children of unmarried parents. Under § 15-2-109(b), a child born outside marriage is the child of the mother. The child is also the father's child if the parents went through a marriage ceremony before or after the birth, or if paternity was established by a court before the father's death or by clear and convincing proof after it.

Lifetime gifts. Under § 15-2-110, a gift during life counts against an heir's share only if the decedent said so in a writing made at the time, or the heir acknowledged it in writing.

Two family lines. Under § 15-2-114, a person related to the decedent through two lines takes only one share, based on the relationship that gives the larger share.

Divorce. Under § 15-2-802(a), a person divorced from the decedent, or whose marriage was annulled, is not a surviving spouse unless they remarried and were married at the death. A decree of separation that does not end the marriage is not a divorce for this purpose.

The slayer rule. Under § 15-2-803, a person who participates in the wilful and unlawful killing of the decedent cannot inherit and is treated as having died first.

When No Heir Survives

If no one in the § 15-2-103 list survives, the property does not go to a friend or a stepchild. Idaho Code § 14-117 requires the county treasurer, acting as public administrator, to open probate when a person dies intestate without known heirs and no one else starts a proceeding within three months. After final settlement, § 14-113 has the administrator report the property as abandoned property under the Revised Unclaimed Property Act, and the state treasurer pays the money into the public school permanent endowment fund once the redemption period expires.

Section 15-2-104 still cross-refers to a "section 15-2-105" for a taking by the state. That section does not appear on the Idaho Legislature's site. Section 14-113 is the working escheat rule.

How an Intestate Estate Gets Settled

The statutes name the heirs. Someone still has to collect the property and hand it over, and that usually means opening the estate in the district court for the county where the decedent lived. Idaho Code § 1-2208 lets the district's administrative judge assign probate proceedings to the county's magistrate division. The court appoints a personal representative, who carries the same personal representative duties that apply when there is a will.

Smaller estates can skip that step for personal property. Under Idaho Code § 15-3-1201, once 30 days have passed since the death, a successor can collect personal property with a signed affidavit if the fair market value of the entire estate subject to probate, less liens and encumbrances, does not exceed $100,000, and no petition for a personal representative or summary administration is pending or granted. The affidavit does not transfer real estate. See the Idaho small estate guide for the other two small-estate routes, including the spouse-only summary administration.

If these default rules would send property somewhere the owner would not choose, the fix is a will. Make an Idaho will instead covers witnesses, handwritten wills and self-proving affidavits.

When to Get Help

Plenty of Idaho intestate estates divide straight off the statute. Talk with a licensed Idaho attorney when:

  • the family disagrees about whether an asset is community or separate property
  • separate-property income, such as rent or dividends, was mixed with community funds
  • the couple owned property acquired in another state
  • deaths close together raise a 120-hour survival question
  • a representation split runs across several generations
  • an heir cannot be found, or the family tree is disputed

This guide helps you organize the statutory shares and the questions worth asking. Confirm anything that affects a particular estate with the court handling it or a licensed Idaho attorney.

Sources:

It is not legal advice.

Information current as of September 24, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Idaho can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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