Oklahoma’s intestacy laws are similar to Texas and underwent a similar change in 1985. These laws were primarily enacted in order to ensure that children from either a prior marriage or outside the marriage received a share of the decedent’s estate. The relevant date that matters in determining how the estate will be distributed is whether the decedent died before or after July 1, 1985.
Death Prior to July 1, 1985
If the decedent died before July 1, 1985 and left only a surviving spouse and one child or one grandchild, then the estate will be divided in equal shares between the surviving spouse and the decedent’s child.[1] In the second situation, where the decedent was survived by a spouse and more than one child, then the spouse will receive one-third of the decedent’s estate and the remainder will be divided in equal shares to the children. If the decedent has a deceased child, but living grandchildren of that deceased child, then the decedent’s grandchildren will take by right of representation. If the decedent has no children and is survived only by a spouse, then one-half of the estate will go to the surviving husband or wife, and the remaining one-half will go to the decedent’s father and mother in equal shares. If the decedent is not survived by any children or parents, then the surviving spouse is still limited to a one-half share of the estate, and then remaining one-half then goes in equal shares to any siblings or to nieces and nephews, by right of representation.
It is important to note that if a parent does survive the decedent, they will take to the exclusion of any siblings of the decedent. Additionally, under this older rule, the only possibility for the surviving spouse to inherit the decedent’s entire estate is if the decedent is not survived by any children, grandchildren, parents, or siblings, or siblings’ issue.
Death on or after July 1, 1985
For any individual who dies on or after July 1, 1985 their estate will be distributed according to the following rules. Rather than make a distinction in the number of the children that the decedent had, the newer intestacy laws instead focus on whether the children were also the children of the surviving spouse.
The statute provides that if there are surviving children, all of whom are also children of the surviving spouse, the spouse inherits one-half of all property, whether or not it was acquired by “joint industry” or not.[2] Joint industry is a near-identical concept to Texas community property law. Reference to property that is acquired by joint industry of spouses during marriage includes all property that was not owned by either spouse at the time of their marriage or acquired by them respectively thereafter by gift, devise, or descent.[3] The concept of “joint industry” is a rule of descent and distribution and not of property, which means that it does not vest the non-titleholding spouse with any interest in the property except upon the death of the titleholding spouse.[4] The remaining one-half of the decedent’s estate passes to the surviving children and issue of any deceased child by right of representation.
If there are children, one or more of whom are not also children of the surviving spouse, then the distribution scheme changes. The surviving spouse now receives an undivided one-half interest in the property that was acquired by joint industry during marriage. Additionally, the property that was not acquired by joint industry will be divided in equal parts between the spouse and any living children or surviving grandchildren by right of representation.
Lastly, in the case where the decedent is not survived by any children or grandchildren, the surviving spouse will receive all the property acquired by joint industry and one-third of all remaining property. The last two-thirds of decedent’s property will be issued to the decedent’s parents or siblings. The line of descent as to whom receives this remaining share goes in the following order: parents, siblings, grandparents, and then next of kin.
[1] Okla. Stat. tit. 84, § 213(a) (LexisNexis, Lexis Advance through the First Regular Session of the 57th Legislature (2019)).
[2] Okla. Stat. tit. 84 § 213(b).
[3] See Turner v. Hubbell, 1955 OK 207, 288 P.2d 394, 1955 Okla. LEXIS 512 (Okla. 1955). See also Weaver v. Koontz, 1956 OK 256, 301 P.2d 1009, 1956 Okla. LEXIS 579 (Okla. 1956) (finding that Where a husband, prior to marriage, contributed to the purchase price of property paid by the wife and then continued to contribute after marriage, the property was acquired by the joint industry of the parties under Okla. Stat. tit. 84, § 213 despite the wife’s acquiring title to the property prior to the marriage).
[4] Essex v. Washington, 198 Okla. 145, 176 P.2d 476 (1947).