What the rule says
Georgia's intestacy statute, O.C.G.A. § 53-2-1, distributes the estate of a Georgia decedent who dies without a will. The formula varies based on family structure:
- Spouse and one descendant: The spouse and the descendant share equally (each takes one-half). - Spouse and two descendants: The spouse takes a child's share — one-third — with the two descendants taking one-third each. - Spouse and three or more descendants: The spouse takes a child's share but no less than one-third. With three descendants, the spouse takes one-third (not one-fourth, which a strict equal split would produce). With four or more descendants, the spouse continues to take one-third while the descendants share the remaining two-thirds. - Spouse but no descendants: The spouse takes the entire estate. - Descendants but no spouse: The descendants take the entire estate by representation. - No spouse and no descendants: The estate passes to parents, then siblings, then more remote relatives.
The "child's share, with one-third minimum" framework is one of Georgia's distinctive intestacy features. Many other states use fixed fractions (one-half, one-third) regardless of descendant count, while some use formulas that adjust by family structure.
What this means in practice
The formula produces specific outcomes by family size:
- One descendant: Spouse takes 1/2 of the estate, descendant takes 1/2. - Two descendants: Spouse takes 1/3, descendants together take 2/3 (1/3 each). - Three descendants: Spouse takes 1/3, descendants together take 2/3 (2/9 each — i.e., the descendants share the 2/3 equally among them, not 1/4 each). - Four descendants: Spouse takes 1/3, descendants take 2/3 (1/6 each). - Five or more: Same pattern — spouse 1/3, descendants share 2/3 equally.
The one-third floor for the surviving spouse means the spouse's share does not shrink below one-third regardless of how many descendants exist. But the spouse's share does shrink from one-half (with one descendant) to one-third (with two or more descendants).
Georgia treats descendants from prior relationships the same as mutual descendants. The formula does not differentiate, similar to Illinois.
A few practical scenarios
- A Georgia resident dies without a will, leaving a surviving spouse and one child. The estate is worth $400,000. The spouse takes $200,000 (1/2). The child takes $200,000. - A Georgia resident dies without a will, leaving a surviving spouse and two children, both mutual. The estate is worth $300,000. The spouse takes $100,000 (1/3). The two children each take $100,000 (1/3 each). - A Georgia resident dies without a will, leaving a surviving spouse and one child from a prior relationship. The estate is worth $200,000. The spouse takes $100,000 (1/2). The child from the prior relationship takes $100,000. - A Georgia resident dies without a will, leaving a surviving spouse and four mutual children. The estate is worth $600,000. The spouse takes $200,000 (1/3). The four children each take $100,000 (1/6 each).
What you can do about it
A valid Georgia will gives complete control over distribution:
- Georgia will requirements. A will must be in writing, signed by the testator (or by another at the testator's direction in the testator's presence), and signed by two competent witnesses (O.C.G.A. § 53-4-20). - Georgia does not generally recognize holographic wills. Handwritten unwitnessed wills are generally not valid for Georgia residents, with limited exceptions. - Self-proving affidavits are recognized. Adding a self-proving affidavit at execution simplifies probate. - Beneficiary designations override intestacy. Life insurance, retirement accounts, and similar assets pass to named beneficiaries. - Year's support. Under O.C.G.A. § 53-3-1 et seq., a surviving spouse and minor children can claim year's support from the estate, taking priority over creditors and most beneficiaries. Year's support is one of Georgia's distinctive family protections (covered separately in ga_years_support).
Who this affects most
The Georgia intestacy formula is most consequential for:
- Married Georgia residents with multiple descendants whose intestate distribution would not match preferences - Surviving spouses who depend on a larger share of the estate than one-third - Households with mutual children where the spouse-favored intestacy of states like Florida (where mutual descendants give the entire estate to the spouse) would be preferred - Blended families where the formula treats prior-relationship descendants identically to mutual descendants
Georgia's framework provides a one-third minimum for the surviving spouse — meaningful protection — but produces smaller spousal shares than some other states when multiple descendants exist. A will is the only mechanism to direct a different distribution.