In This Guide
Plain English Explanation
In California, when someone dies without a will, their surviving spouse automatically gets all of the community property (property acquired during marriage). For separate property (property owned before marriage or received as gift/inheritance), the spouse's share depends on who else survives: If no children, parents, or siblings survive, the spouse gets everything. If there's one child or the children of one deceased child, the spouse gets half. If there are multiple children (or issue of multiple children), the spouse gets one-third. Parents and siblings only matter if there are no children.
Key Points to Remember
Full Statutory Text
(a) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100. (b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101. (c) As to separate property, the intestate share of the surviving spouse or surviving domestic partner is as follows: (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister. (2) One-half of the intestate estate in the following cases: (A) Where the decedent leaves only one child or the issue of one deceased child. (B) Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them. (3) One-third of the intestate estate in the following cases: (A) Where the decedent leaves more than one child. (B) Where the decedent leaves one child and the issue of one or more deceased children. (C) Where the decedent leaves issue of two or more deceased children.
California Probate Code Section 6401
Practical Application
This section is crucial for determining whether probate is even needed. If all assets are community property and the spouse survives, the spouse may receive everything automatically or through a simple spousal property petition (no full probate needed). Understanding the characterization of property as community vs. separate is essential.
Practical Tips
- Document which assets are community vs. separate property
- Consider a Spousal Property Petition if all assets are community property
- If both spouses die without wills, intestate succession becomes very complex
- Making a will avoids all of these default rules and lets you choose
Frequently Asked Questions
Do I need probate if my spouse dies without a will?
What if we had separate property before marriage?
What about domestic partners?
How do children from a previous marriage affect inheritance?
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