When a California resident dies without a will or trust, the state decides who inherits their assets. This process is called intestate succession, and the results often surprise families. Your long-term partner may inherit nothing. A distant relative you have not spoken to in decades may receive a share of your estate. And a court, not you, will decide who raises your children.
Understanding California's intestate succession rules is the best argument for creating an estate plan while you still can.
Community Property vs. Separate Property
California is a community property state, which means the intestate succession rules treat community property and separate property differently.
Community property includes most assets acquired during the marriage by either spouse, regardless of whose name is on the title. This includes wages, retirement contributions, real estate purchased during the marriage, and business income.
Separate property includes assets owned before the marriage, gifts received by one spouse individually, and inheritances received by one spouse, even during the marriage. Any income or appreciation on separate property may also retain its separate character if properly maintained.
Who Inherits Community Property?
Under California Probate Code Section 6401, if you die without a will, your entire share of community property passes to your surviving spouse. This is one area where intestate law often aligns with what most married couples would want.
However, this only applies to community property. If you also have separate property, the distribution becomes more complicated.
Who Inherits Separate Property?
The distribution of your separate property depends on which surviving relatives you have. Under Probate Code Section 6402, the rules work as follows:
- Surviving spouse and one child (or descendants of one child): The spouse receives one half of the separate property, and the child receives the other half.
- Surviving spouse and two or more children: The spouse receives one third of the separate property, and the children share the remaining two thirds equally.
- Surviving spouse, no children, but surviving parents: The spouse receives one half, and the parents receive the other half.
- Surviving spouse, no children, no parents, but surviving siblings: The spouse receives one half, and the siblings share the other half.
- Surviving spouse, no children, no parents, no siblings: The spouse receives all of the separate property.
If there is no surviving spouse, everything passes to your children in equal shares. If there are no children, the estate passes to your parents, then siblings, then more distant relatives, following a strict statutory hierarchy.
Unmarried Partners Inherit Nothing
This is the single most consequential gap in California's intestate succession laws. If you are in a long-term committed relationship but are not legally married or registered as domestic partners, your partner inherits nothing under intestate succession, regardless of how long you have been together, whether you share a home, or whether you have built a life together.
California does not recognize common-law marriage. The only exceptions are registered domestic partnerships, which provide the same intestate succession rights as marriage. If you are unmarried and want your partner to inherit, you must create a will or trust that explicitly provides for them.
What Happens to Minor Children?
If both parents die without naming a guardian in a will, the court decides who will raise your minor children. The court will consider the best interests of the child, and family members may petition for guardianship. But without your written instructions, there is no guarantee the court will select the person you would have chosen.
Family members may disagree about who should serve as guardian, leading to contested proceedings that can be emotionally and financially draining for everyone involved, including the children. A simple will that names a preferred guardian and an alternate guardian prevents this uncertainty entirely.
It is also important to understand that guardianship and inheritance are separate issues. Even if a family member is appointed guardian, they do not automatically have access to the child's inheritance. The court will likely require a blocked account or a guardianship of the estate, which involves ongoing court supervision of how the money is spent on the child's behalf.
A living trust with provisions for minor children avoids this problem by appointing a trustee to manage the inheritance according to your specific instructions, such as funding education, healthcare, and living expenses, and distributing the remainder when the child reaches an age you specify.
Stepchildren and Foster Children
Under California intestate law, stepchildren do not inherit from a stepparent unless they were legally adopted. Even if you raised your stepchildren from infancy and considered them your own, they have no legal right to your estate under intestate succession. The same applies to foster children.
If you want stepchildren or foster children to inherit, you must name them explicitly in a will or trust.
The Probate Requirement
When someone dies without a trust, their assets must generally go through probate before they can be distributed to heirs. As discussed in our article on avoiding probate in California, this process typically takes 12 to 18 months and costs between 4% and 8% of the gross estate value. The combination of intestate succession and mandatory probate means your family faces both uncertainty about who inherits and a lengthy, expensive court process.
The Simple Solution
A comprehensive estate plan, even a basic one, allows you to decide who inherits your assets, who raises your children, and how your affairs are managed. It also keeps your estate out of probate court, saving your family time, money, and stress during an already difficult period.
The cost of creating a will and trust is a fraction of what your family will spend navigating the probate court without one. If you have been putting off your estate plan, the information in this article should make the urgency clear.
This article is for informational purposes only and does not constitute legal advice. Every family's circumstances are unique. Contact MVP Law Group for a consultation to create an estate plan that reflects your wishes and protects your loved ones.