Updated July 31, 2026. Quick answer: in a blended family with no will, the surviving spouse almost never “gets everything” — and the generic formula articles quote is wrong twice over. The Uniform Probate Code’s own text (§2-102(4)) cuts the spouse’s share specifically when the decedent leaves children who are not the survivor’s children — the exact blended-family case — and fewer than half the states even use the UPC formula. The rest split along a deeper fault line most articles never mention: whether your state is community-property or common-law changes the mechanics, not just the percentages.
The two systems, in one paragraph each
Community-property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin): the survivor already OWNS half of everything acquired during the marriage — that half never enters the estate at all. Intestacy divides only the decedent’s half, and in several of these states the decedent’s community half passes to the spouse anyway — so the fight in a blended family is almost always over separate property: the house bought before the marriage, the inheritance kept apart. The mechanics, fully.
Common-law states: everything titled to the decedent is in play, and the spouse’s share follows the state’s formula — a dollar amount plus a fraction in UPC states, a flat fraction in others — with the blended-family reduction clause doing exactly what it sounds like. The children from the prior relationship take the remainder; if they are minors, through a court process nobody enjoys.
What actually decides most cases: the title, not the statute
Intestacy only reaches the PROBATE estate. Joint tenancy, TOD deeds, and beneficiary designations pass outside the split entirely — which is why the practical questions are who gets the house and whether it is separate property to begin with, and why stepchildren — who inherit nothing by default — depend completely on paperwork someone must actually do. What a will costs instead of all this: the honest number.
Blended families are the one case where ‘the law will sort it out’ fails everyone.
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The number that surprises people who bought a long time ago
Downsizing is the one home sale where the gain is usually large and the exclusion usually still covers it. A couple who bought in 1994 for $180,000 and sell at $760,000 with $46,000 of selling costs have a realized gain of about $534,000 before improvements. That is above the $500,000 joint cap — but decades of capital improvements are exactly what brings it back under, and most sellers have never added them up.
Improvements are the lever, and the records are the constraint
A new roof, an addition, a replaced HVAC system, new windows, a finished basement: these add to basis. Repainting and repairs do not. Thirty years of improvements on a family home routinely total six figures, and every dollar of it reduces the gain dollar for dollar. The practical problem is documentary, not legal — the seller who kept receipts pays less than the identical seller who did not.
Why downsizers should check the net investment income tax separately
A retiree with modest ordinary income can still be pushed over the 3.8 percent NIIT threshold by the sale itself, because taxable gain is net investment income. The thresholds are $250,000 on a joint return and $200,000 otherwise, written into Section 1411(b) as fixed figures with no indexing. A sale that produces $120,000 of taxable gain on top of $180,000 of other income crosses the joint threshold and picks up 3.8 percent on the part above it.
The move itself may change the tax
Downsizing usually means moving, and sometimes across a state line. Some states tax the gain the federal exclusion just removed. If the sale and the move are in the same year, the order of the two matters, and it is worth checking the destination state before signing.
Related
Methodology
- Exclusion caps, the 2-of-5 test, the nonqualified-use allocation, the reduced-exclusion fraction and the depreciation carve-out are taken from the text of 26 U.S.C. 121. The 3.8 percent rate and its thresholds are from 26 U.S.C. 1411. Both were read on 2026-07-30.
- Section 121 caps and Section 1411 thresholds are written in the statute as fixed dollar amounts with no indexing mechanism, so they are built in. Long-term capital gain brackets ARE indexed annually, so your rate is an input rather than a lookup.
- Figures were computed by two independently written engines that agree to the cent, and the calculator on this page reproduces both exactly.
- Federal only. State treatment varies and some states do not follow the federal exclusion.
Educational estimate, not tax advice, and not a filed return. Federal only. Confirm anything that changes a filing decision with a CPA or tax attorney.
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