Skip to main content
Montana Intestate Succession
Pillar GuideMontana16 min read

Montana Intestate Succession

Who inherits without a will in Montana: the spouse's $300,000, $225,000 and $150,000 tiers under MCA 72-2-112, then the 72-2-113 order of heirs.

By Settled Editorial

Not sure if you need probate?

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

When a Montana resident dies without a will, Title 72, chapter 2, part 1 of the Montana Code Annotated decides who inherits. The surviving spouse takes the whole estate in the simplest families. In every other family the spouse takes a fixed first amount of $300,000, $225,000 or $150,000, plus a fraction of what is left, and the rest passes down the order of heirs in MCA 72-2-113.

Those three dollar figures are Montana's own. They come from MCA 72-2-112 as last amended in 2019 (Sec. 8, Ch. 313, L. 2019), and the section prints them as flat amounts with no inflation table to look up. A summary copied from another state's code will not match them.

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

What Intestate Succession Covers

Dying without a will is called dying "intestate." Under MCA 72-2-111(1), any part of an estate that a will does not effectively dispose of passes by intestate succession to the heirs the code names. A will can also expressly exclude a person or a class from inheriting, and under 72-2-111(2) the excluded share then passes as if that person had disclaimed it.

These rules reach probate property only. Assets that name their own taker skip them:

  • retirement accounts and life insurance with a named beneficiary
  • joint tenancy property with right of survivorship
  • payable-on-death and transfer-on-death bank and brokerage registrations
  • Montana real estate under a recorded transfer on death deed
  • anything already titled to a trust

A policy that names a beneficiary pays that beneficiary no matter who the heirs are.

Do you need probate in Montana?

Answer a few questions to see whether Montana probate is required and which process applies.

Take the 2-minute assessment

Who Counts as the Surviving Spouse

Montana recognizes common-law marriage. MCA 40-1-403 says it in one line: "Common-law marriages are not invalidated by this chapter." A partner who was married to the decedent at common law is a surviving spouse for intestate succession, even without a marriage license or certificate. When the family disputes whether a common-law marriage existed, the district court decides that question on the evidence before it applies the shares below.

A former spouse does not qualify. Under MCA 72-2-812(1), a person who is divorced from the decedent, or whose marriage was annulled, is not a surviving spouse unless the two remarried and were married at the death. A decree of separation that leaves the marriage in place is not a divorce for this purpose.

Montana is not a community-property state. The one exception covers couples who moved here from a community-property state. MCA 72-9-102 applies to property acquired as community property under another jurisdiction's law, and 72-9-107 makes half of that property the surviving spouse's own at the death. Only the decedent's half passes by intestate succession.

The Surviving Spouse Share

MCA 72-2-112 sets four outcomes. Which one applies turns on two facts: whether the decedent left descendants, and whose descendants they are. The Montana inheritance calculator applies these rules to one family.

Family situationSpouse receivesStatute
No descendant and no parent of the decedent survivesThe entire intestate estate72-2-112(1)(a)
Every surviving descendant of the decedent is also the spouse's, and the spouse has no other surviving descendantThe entire intestate estate72-2-112(1)(b)
No descendant survives, but a parent of the decedent doesThe first $300,000, plus 3/4 of any balance72-2-112(2)
Every surviving descendant is also the spouse's, but the spouse has a surviving descendant who is not the decedent'sThe first $225,000, plus 1/2 of any balance72-2-112(3)
One or more of the decedent's surviving descendants are not the spouse'sThe first $150,000, plus 1/2 of any balance72-2-112(4)

Three things follow from that table.

Parents can inherit alongside a spouse. A married person who dies with no children but a living mother or father does not leave everything to the spouse. The spouse takes $300,000 and three-fourths of the rest, and the parent or parents take the remaining fourth.

The spouse's own children from another relationship matter. If a husband and wife share all of the husband's children, but the wife also has a child from an earlier marriage, her share drops from everything to $225,000 plus half. The other half goes to the shared children.

A child the decedent had with someone else cuts the share furthest. One child from an earlier relationship is enough to put the spouse on the $150,000 tier.

Three worked examples

Say the intestate estate is worth $500,000 after debts and expenses.

  • No children, one parent living. The spouse takes $300,000 plus 3/4 of the remaining $200,000, which is $150,000, for a total of $450,000. The parent takes $50,000.
  • Shared children, and the spouse has a child from a prior marriage. The spouse takes $225,000 plus 1/2 of the remaining $275,000, which is $137,500, for a total of $362,500. The decedent's children split $137,500.
  • The decedent has a child from a prior relationship. The spouse takes $150,000 plus 1/2 of the remaining $350,000, which is $175,000, for a total of $325,000. The decedent's descendants split $175,000.

If the estate is smaller than the first amount, the spouse takes all of it. A $180,000 estate on the $225,000 tier leaves nothing for anyone else.

The intestate share is only one of the spouse's rights. The homestead allowance, exempt property and the family allowance come on top, and the elective share applies when a will exists. See what the surviving spouse can claim on top.

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

MCA 72-2-113(1) sends whatever the spouse does not take, or the whole estate when no spouse survives, down a fixed order. Each class has to be empty before the next one inherits:

  1. Descendants of the decedent, by representation.
  2. Parents, equally if both survive, or the survivor if only one does.
  3. Descendants of the parents, meaning brothers and sisters and then nieces and nephews, by representation.
  4. Grandparents and their descendants. Half goes to the paternal side and half to the maternal side. On each side the grandparents take equally if both survive, the survivor takes if one does, and if both are gone their descendants take by representation.
  5. One side only. If no grandparent or descendant of a grandparent survives on one side, the whole estate goes to the relatives on the other side, in the same manner.
  6. The closest kin of any degree. If nobody survives through the grandparents, 72-2-113(1)(e) passes the estate to the person of the closest degree of kinship with the decedent. Several people in that same degree share equally.

That sixth class sets Montana apart from states that stop at the grandparents' line. A great-aunt, a first cousin once removed, or a more distant cousin can inherit here. Subsection (2) adds a tiebreaker: when relatives of the same degree claim through different ancestors, those claiming through the nearer ancestor take to the exclusion of those claiming through a more remote one.

Montana has no separate class for stepchildren. A stepchild who was never adopted inherits nothing under 72-2-113 unless the stepchild is also a blood relative in one of the listed classes.

How "By Representation" Works

MCA 72-2-116 explains how a class splits when some members have died and left children of their own. For the decedent's descendants, the estate divides into equal shares at the nearest generation that has a living member. That generation gets one share for each living member and one share for each deceased member who left surviving descendants.

Each living member keeps one share. Under 72-2-116(2)(b), the share of each deceased member then divides "in the same manner" among that member's own descendants, and the process repeats at each generation until every share lands with a living person.

Work an example. A widow dies without a will. One daughter survives. One son died before her and left one child. Another son died before her and left three children. The children's generation has a living member, so the estate splits three ways:

  • the daughter takes 1/3
  • the first son's only child takes his father's full 1/3
  • the second son's three children split their father's 1/3, taking 1/9 each

The share follows the family line. Montana does not pool the deceased children's shares and redivide them equally among all the grandchildren, which is the result in states that use the 1990 Uniform Probate Code's per-capita-at-each-generation rule. Subsection (3) applies the same method to nieces, nephews and the grandparents' descendants.

The 120-Hour Survival Rule

Under MCA 72-2-114, an heir who does not outlive the decedent by 120 hours, five full days, is treated as having died first. The rule covers the homestead allowance, exempt property and intestate succession. Survival for that period has to be shown by clear and convincing evidence, or the heir is deemed to have failed it.

The rule decides who inherits when a husband and wife die in the same accident. It does not apply when using it would send the estate to the state under 72-2-115.

A child in gestation at the death counts as living under MCA 72-2-118 if the child lives 120 hours or more after birth.

Rules That Change Who Counts as an Heir

Half blood. MCA 72-2-117 is one sentence: relatives of the half blood inherit the same share as relatives of the whole blood. A half brother takes what a full brother takes.

Two lines of relationship. Under MCA 72-2-123, a person related to the decedent through two lines takes one share only, the larger of the two.

Children born outside marriage. MCA 72-2-124(1) makes a child the child of the natural parents regardless of their marital status. The relationship may be established under Title 40, chapter 6, part 1.

Adopted children. Under 72-2-124(2), an adopted person is the child of the adopting parents and not of the natural parents. A stepparent adoption is carved out: when the spouse of a natural parent adopts, the child keeps inheritance rights through both natural parents.

Parents who did not act as parents. Two sections bar a parent from inheriting from a child. MCA 72-2-124(3) blocks a natural parent and that parent's relatives unless the parent openly treated the child as the parent's own and did not refuse to support the child. MCA 72-2-125, added in 2019, bars a parent whose parental rights were terminated and never restored, and a parent of a child who died before 18 when clear and convincing evidence shows the parent's rights could have been terminated for nonsupport, abandonment, abuse or neglect. A barred parent is treated as having died before the child.

Advancements. Under MCA 72-2-119, a lifetime gift counts against an heir's share only if the decedent declared it an advancement in a contemporaneous writing or the heir acknowledged it in writing. Without that paper, gifts made during life change nothing.

Debts owed to the decedent. MCA 72-2-120 charges a debt against the debtor's own share only, and drops it if the debtor died first.

Citizenship. MCA 72-2-121 bars no one from inheriting on the ground that the heir, or a person the heir claims through, is or was an alien.

Dower and curtesy. MCA 72-2-122 abolishes both.

Killing or financial exploitation. MCA 72-2-813 reaches further than the usual slayer rule. A person who feloniously and intentionally kills the decedent forfeits the intestate share, and so does a person who financially exploits a vulnerable adult, which the section defines to include anyone 60 or older. Exploitation means knowingly using a position of trust to take or try to take at least $1,000 of the person's money or property. The estate then passes as if the abuser or killer had disclaimed. A conviction settles the question, but none is required: under 72-2-813(7) the court can decide it on a petition by the preponderance of the evidence.

Disclaimers. An heir who does not want a share can disclaim it under MCA 72-2-817 through 72-2-833. Timing matters: under 72-2-829(2), a disclaimer is barred once the heir accepts the interest, transfers it, or pledges it.

Family Protections Sit Beside the Intestate Share

Two fixed allowances come ahead of the estate's creditors, and in Montana both are paid in addition to the intestate share rather than counted against it:

  • Homestead allowance, $22,500 under MCA 72-2-412, to the surviving spouse, or split among the minor and dependent children when no spouse survives. It is exempt from and has priority over all claims against the estate.
  • Exempt property up to $15,000 under MCA 72-2-413, in household furniture, automobiles, furnishings, appliances and personal effects, measured above any security interests. With no spouse, the decedent's children share it.

Both sections say the right is in addition to any share passing by intestate succession. A reasonable family allowance for support during administration sits beside them under 72-2-414. See Montana surviving spouse rights for how the three are claimed.

When No Heir Survives

Because the order of heirs runs to the closest kin of any degree, escheat is rare. Only when no taker exists under the chapter does MCA 72-2-115 send the intestate estate to the state of Montana.

How an Intestate Estate Gets Settled

The statutes name the heirs. Someone still has to collect the property and hand it over.

In Montana, probate is heard by the district court of the county where the decedent lived, and the Clerk of District Court handles informal proceedings. Find yours in the list of Montana probate courts by county. When there is no will, MCA 72-3-502 sets the order of priority to serve as personal representative: the surviving spouse ranks ahead of the other heirs, then the public administrator, and 45 days after the death any creditor. The personal representative collects the assets, publishes notice to creditors, pays allowed claims, and distributes the shares above. Read how the estate is administered for the steps.

Plenty of intestate estates never open a court file. Under MCA 72-3-1101, a successor can collect personal property with a signed affidavit once 30 days have passed since the death, if the probate estate, wherever located and less liens and encumbrances, is worth $100,000 or less and no petition to appoint a personal representative is pending or granted. The affidavit reaches personal property, not land. See collecting a small estate without probate for the full test.

If these default shares would send property somewhere the owner would not choose, the answer is a will. See making a valid Montana will.

When to Get Help

Many Montana intestate estates divide straight off the statute. Consider a licensed Montana attorney when:

  • the family disputes whether a common-law marriage existed
  • a blended family puts the spouse on the $225,000 or $150,000 tier
  • a parent survives a married decedent with no children
  • deaths close together raise a 120-hour survival question
  • the estate passes to distant kin under 72-2-113(1)(e) and more than one ancestor line claims
  • a parental bar, an advancement writing, or a 72-2-813 forfeiture petition is in play
  • the couple once lived in a community-property state

This guide organizes the statutory shares and the questions worth asking. Confirm anything that affects a particular estate with the Clerk of District Court handling it or a licensed Montana attorney.

Sources:

It is not legal advice.

Information current as of September 27, 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 Montana can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

All Montana guides← Back to all articles

More Montana Resources

Explore the rest of the Montana probate hub.

Do I need probate?5 pages
For the executor5 pages
Money and taxes5 pages
Family and inheritance4 pages
Transfer assets5 pages
File and learn5 pages