The term next of kin in probate usually refers to who are the heirs of an estate where there is no will. Maine, like all other states, has statutes that determine who inherits where there is no will (called intestacy).
Pursuant to Maine statutes 18-C Section 2-102 and Section 2-103, the following chart explains the rules of next of kin intestacy in Maine. (Note that some other websites are displaying outdated or incorrect information. Maine’s statutes were revised in 2017.)
Family Composition | Who Inherits |
Descendants with no spouse | all to the descendants, per capita at each generation |
Spouse with no descendants or parents | spouse takes entire estate |
Spouse and descendants, but all of the surviving descendants are also descendants of the surviving spouse and there are no other descendants of the surviving spouse who survived the decedent | Spouse takes entire estate |
Spouse and descendants, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more descendants who are not descendants of the decedent | Spouse takes first $100,000 plus one-half of the remaining estate. Descendants of decedent take per capita at each generation. |
Spouse and descendants, where there is at least one surviving descendant who is not a descendant of the surviving spouse | Spouse receives one-half of the estate, and descendants take per capita at each generation. |
Spouse, no descendants, with at least one living parent | Spouse receives first $300,000 plus three-fourths of the remaining estate. Remainder split between surviving parents, or all to one surviving parent. |
No spouse, no descendants, and no living parents | (1)Half to the decedent’s paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, to be distributed to the descendants per capita at each generation; and (2) Half to the decedent’s maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, to be distributed to the descendants per capita at each generation |
Does Maine Have a Survival Provision for Next Of Kin Intestate Inheritance?
Yes, Maine law requires that a next of kin intestate heir survive the decedent for 120 hours. If not, the intestate heir is considered to have predeceased the decedent. See Maine Statute Title 18-c, Section 2-104.
Do Next of Kin Adopted Children Inherit Under Maine Law?
Yes, adopted children are treated exactly the same as biological children for purposes of intestacy and next of kin status under Maine law. See Maine Statute Title 18-C, Section 2-113.
How is Parentage Determined Under Maine Law?
Pursuant to Maine Statute title 19-A, Section 1851, parentage includes the following methods of determination:
- Giving birth
- Adoption
- Acknowledgement of being a parent
- Assisted reproduction
- Gestational carrier agreements
Does Maine Use Per Stirpes or Per Capita for Intestate Estates?
Maine’s intestacy statute uses a per capita concept, instead of a per stirpes concept used by most other states, for next of kin persons taking at the same generation.
Under a per stirpes distribution pattern, all descendants of a deceased parent take the share of the deceased parent and split the share among the descendants of the deceased parent.
Under Maine’s per capita system, all persons at the same generation in the case of deceased parents takes the same amount, regardless of the number of people in each part of the family tree.
In the following example, the Decedent passes with three children, all of whom predeceased the Decedent. The first deceased child has two living children, the second deceased child has one living child, and the third deceased child has three living children.
In a classic per stirpes distribution pattern, the estate is divided into three equal shares, one share for the children of each deceased child. So the children of the first deceased child would each receive one-sixth of the estate, the sole child of the second deceased child would receive one-third of the estate, and the three children of the third deceased child would each receive one-ninth of the estate.
In Maine’s per capita distribution pattern for intestate estates, because all six grandchildren are at the same generation, they each receive the same share – one-sixth of the estate. But this per capita rule only apply to persons at the same generation. In the example, if the second deceased child was still living, that person would receive one-third of the estate, and the five grandchildren would equally split the remaining two-thirds of the estate.
