✓ Verified June 2026
This guide explains what happens when someone dies dying without a will in Montana — exactly who inherits under Montana’s intestate-succession law, and what surprises families most. All shares are from Montana statute, verified as of June 2026.
In This Montana Guide:
Who Inherits When There Is No Will in Montana
Here is exactly how Montana divides an estate when there is no will:
| If the person leaves… | Who inherits in Montana |
|---|---|
| Spouse, no children | The surviving spouse inherits the entire intestate estate if no descendant or parent of the decedent survives. The spouse also inherits the entire estate if all of the decedent’s surviving descendants are also descendants of the surviving spouse AND the surviving spouse has no other surviving descendants from another relationship (MCA 72-2-112(1)(a) and (b)). |
| Spouse + shared children | If all of the decedent’s surviving descendants are also descendants of the surviving spouse, BUT the surviving spouse has one or more surviving descendants who are not descendants of the decedent (i.e., the spouse has children from a prior relationship), the spouse receives the first 225000 plus 1/2 of the remaining balance. The decedent’s descendants split the other half by representation (MCA 72-2-112(1)(c)). If neither spouse nor decedent has children from outside the marriage, the spouse inherits the entire estate (MCA 72-2-112(1)(b)). |
| Spouse + children from another relationship | If one or more of the decedent’s surviving descendants are NOT descendants of the surviving spouse (the decedent had children from another relationship), the surviving spouse receives the first 150000 plus 1/2 of the remaining balance. The decedent’s descendants (including both shared and non-shared children) split the other half by representation (MCA 72-2-112(1)(d)). If there are no surviving descendants but a parent of the decedent survives, the spouse receives the first 300000 plus 3/4 of the remaining balance and the parent(s) receive the rest (MCA 72-2-112(1)(c) scenario with parents). |
| Children, no spouse | The decedent’s descendants inherit the entire intestate estate by representation (MCA 72-2-113(1)(a)). Each child receives an equal share; if a child predeceased the decedent leaving their own descendants, those descendants step into the deceased child’s share. |
| No spouse, no children | The estate passes in this order: (1) to the decedent’s parents equally, or to the surviving parent if only one is alive (MCA 72-2-113(1)(b)); (2) if no parent survives, to the descendants of the decedent’s parents (siblings, nieces, nephews) by representation (MCA 72-2-113(1)(c)); (3) if no descendant of a parent survives, half to the paternal grandparents or their descendants and half to the maternal grandparents or their descendants, by representation; if only one side has surviving relatives, that side takes the entire estate (MCA 72-2-113(1)(d)). |
| No living relatives (escheat) | If no heir can be identified under the intestate succession statute, the estate escheats (passes) to the State of Montana (MCA 72-2-113(2)). This is extremely rare because the statute reaches out to grandparents and their descendants (aunts, uncles, cousins) before escheat applies. |
These shares come from Montana intestate-succession law (MCA 72-2-111 through 72-2-125 (Title 72, Chapter 2, Part 1 — Intestate Succession)).
How Montana divides shares among descendants: Montana uses “by representation” (also called per capita at each generation), defined in MCA 72-2-116. The estate is divided into equal shares at the first generation that has at least one living descendant.
Each living descendant in that generation takes one share, and the shares of any deceased descendants in that same generation are combined and redivided equally among their own descendants at the next generation, repeating downward. This differs from strict per stirpes.
Montana homestead and family allowance: Montana provides three off-the-top protections that take priority over creditors and other heirs: (1) Homestead Allowance — the surviving spouse is entitled to 22500; if no surviving spouse, each dependent child shares 22500 divided by the number of dependent children (MCA 72-2-412).
(2) Exempt Property — the surviving spouse may claim up to 15000 in household furniture, automobiles, furnishings, appliances, and personal effects; if no surviving spouse, the decedent’s children share this allowance (MCA 72-2-413). (3) Family Allowance — a reasonable allowance for maintenance during administration (up to 1 year if the estate is inadequate to pay claims), with no fixed statutory dollar cap (MCA 72-2-414).
These amounts are in addition to any intestate share. The homestead allowance is exempt from and has priority over all claims against the estate.
Half-blood relatives in Montana: Relatives of the half blood inherit the same share they would inherit if they were of the whole blood. A half-sibling is treated identically to a full sibling under Montana law (MCA 72-2-117).
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Assets That Pass Outside Montana Intestate Rules
Assets with a named beneficiary or survivorship feature pass outside Montana’s intestate succession rules entirely. This includes life insurance proceeds, retirement accounts (IRAs, 401(k)s), payable-on-death (POD) bank accounts, transfer-on-death (TOD) investment accounts, transfer-on-death deeds for real property, joint tenancy with right of survivorship, and assets held in a living trust. Only assets in the decedent’s probate estate are subject to intestate distribution.
A surviving heir must also outlive the decedent by 120 hours (5 days) to inherit under intestacy (MCA 72-2-114).
Other Montana intestacy rules: Montana adopted the Uniform Probate Code, so its intestacy rules closely follow the UPC model. Montana recognizes a 120-hour (5-day) survivorship requirement — an heir who does not survive the decedent by at least 120 hours is treated as having predeceased the decedent (MCA 72-2-114).
Montana also has an elective share statute (MCA 72-2-221 et seq.) that allows a surviving spouse to claim a percentage of the augmented estate even if disinherited by a will, though this applies to testate estates rather than intestacy.
Advancements (lifetime gifts intended as early inheritance) reduce an heir’s intestate share only if declared as such in a contemporaneous writing by the decedent or acknowledged in writing by the heir (MCA 72-2-115). An individual who feloniously and intentionally kills the decedent is barred from inheriting (the slayer statute).
What Dying Without a Will in Montana Really Means
When someone dies without a will in Montana, the state’s intestate-succession law — not the family — decides who inherits. The shares above show exactly how Montana divides an estate when someone is dying without a will in Montana, and they often surprise people: a spouse may not automatically inherit everything.
Understanding dying without a will in Montana helps a family know what to expect before they walk into probate court. Remember that some assets pass outside these rules entirely, so the full picture of dying without a will in Montana depends on how each asset was titled.
You don’t have to do this alone
If you are settling a loved one’s estate in Montana, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.
Official Montana Sources & Resources
- Montana Court Self-Help: https://courts.mt.gov/forms/endoflife
- Montana Intestate Succession Statute: https://law.justia.com/codes/montana/title-72/chapter-2/part-1/
- Internal Revenue Service — Estate Tax: irs.gov
- Cornell Legal Information Institute: law.cornell.edu/wex
This Montana intestate-succession guide was last verified against official sources in June 2026. Laws change — verify with your state court or a licensed attorney.
More Montana Wills & Probate Guides
- Montana Wills & Estate Planning
- Montana Probate Process
- Montana Estate & Inheritance Tax
- Montana Small Estate Affidavit
- Montana Living Trust
- Probate Cost Calculator
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Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.