Detailed Answer
Under Georgia’s intestate succession laws, heirs receive a fixed share of a decedent’s estate based on their relationship to the decedent. A surviving spouse, for example, automatically inherits one-half of the estate if there are no descendants, or one-third if there are descendants alongside other heirs. These rules are set out at O.C.G.A. § 53-2-1 et seq..
Georgia law does not permit an heir in an intestate estate to elect a life estate in lieu of their statutory share. The option to take a life estate instead of a fixed inheritance arises only in the context of a testate (will-based) estate, where the surviving spouse may assert the elective share under O.C.G.A. § 53-4-1 et seq.. In that scenario, a spouse can satisfy all or part of their elective share by accepting a life estate in the homestead property, subject to valuation rules and notice deadlines.
If a decedent dies without a will, the surviving spouse and other heirs must adhere strictly to the intestate schedules. No statutory provision in Chapter 2 of Title 53 allows substitution of a life estate for an intestate share.
Should you wish to change the way property passes at death—such as providing a life estate or using trusts—you must do so through proper estate planning instruments, like a will, trust, or prenuptial agreement. Consult an attorney early to draft documents that match your goals.
Disclaimer: This article does not constitute legal advice. It is for informational purposes only. Consult a qualified attorney for advice specific to your situation.
Helpful Hints
- Review Georgia’s intestacy statute at O.C.G.A. § 53-2-1 to confirm who qualifies as an heir.
- Understand the spouse’s elective share under Chapter 4 of Title 53 (O.C.G.A. § 53-4-1 et seq.).
- Note that elective-share claims require strict compliance with notice and filing deadlines after receiving notice of probate.
- Consider drafting a will or trust to allow life-estate interests instead of relying on intestacy rules.
- Keep clear records of property valuations to avoid disputes over elective shares or life estates.