What Is Intestate Succession in California?

Intestate succession is California's default inheritance formula, applied when a person dies without a valid will or trust, or when an instrument fails to dispose of everything. The Probate Code, beginning at section 6400, decides who takes and how much, based on the family tree and on whether each asset was community or separate property.

The broad strokes: a surviving spouse takes all of the community property. Separate property is divided between the spouse and the decedent's children, parents, or siblings in statutory fractions that depend on how many survivors there are; with one child the spouse takes half, with two or more the spouse takes a third. With no spouse, everything runs down the line of descendants, then to parents, siblings, and more remote kin. Unmarried partners inherit nothing under intestacy, no matter how long the relationship, which is one of the most painful surprises the statute delivers.

Intestate estates require a probate administration, and the fights they generate involve heirship determinations, omitted and after-discovered children, community versus separate property characterization, and competing petitions to administer the estate.

How California Distributes an Estate With No Will

When someone dies without a valid will or trust, the Probate Code supplies a distribution formula. It does not consider what the decedent said they wanted, who cared for them, or who needed it most. It applies a fixed hierarchy based on family relationships.

California's scheme also depends heavily on the character of the property, because it treats community property and separate property differently. Identifying which assets are which is often the first and most consequential step in an intestate estate.

The Spouse and Registered Partner Share

A surviving spouse or registered domestic partner generally receives the decedent's one half interest in the community property, meaning the survivor ends up owning all of it.

Separate property is divided. The surviving spouse generally takes all of it if there are no surviving children, parents, siblings, or issue of deceased siblings. The spouse generally takes one half if the decedent left one child or the issue of one deceased child, or left no issue but a surviving parent or the issue of a parent. The spouse generally takes one third if the decedent left more than one child, or one child and the issue of a deceased child.

Where the Formula Produces Painful Results

The scheme has no category for an unmarried partner of many years, a stepchild who was never adopted, or a close friend. It also does not care whether one child was estranged and another provided daily care; children generally share equally.

It can also force a sale. Where a spouse takes one third of a separate property home and the children take two thirds, and no one can buy the others out, the practical result is frequently a partition action among grieving family members. A basic estate plan avoids the entire chain.