Does the surviving spouse get everything if there is no will?

For community property — yes, 100%. For separate property, the spouse's share depends on whether the decedent left children, parents, or siblings. The split can be as low as 1/3 of separate property.

What about unmarried partners?

California intestate succession does not recognize unmarried partners as heirs — even after decades of cohabitation. Without a will, trust, or registered domestic partnership, the partner inherits nothing under the statute.

Do stepchildren inherit?

Generally no — only legally adopted children. There is a narrow exception under Cal. Probate Code § 6454 for foster-child / stepchild relationships that began during minority and continued throughout life if a legal barrier prevented adoption.

What if the decedent and spouse were separated but not divorced?

A pending divorce does not cut off intestate rights. Until the divorce is finalized, the surviving spouse is still legally the spouse and still inherits as such.

Can heirs agree to a different split?

Yes. Heirs can sign a written agreement after death changing the distribution — called an agreement among heirs — subject to court approval and tax planning.

Probate Without a Will in California (Intestate Succession)

Intestate Succession

When someone dies in California without a valid will, they are said to have died intestate. The estate still goes through probate — but instead of a will directing who inherits, the California Probate Code does. Sections 6400 through 6414 set the order of heirs and the share each receives.

The rules are different for community property (assets acquired during marriage) and separate property (assets acquired before marriage, or by gift or inheritance during marriage).

The intestate-succession statute is a one-size-fits-all default. It rarely matches what the decedent would have actually wanted.

Community property vs. separate property

California is a community-property state. For intestate succession, every asset is first classified as one or the other:

Community property: Assets acquired by either spouse during the marriage from their work or earnings. On death, the surviving spouse inherits 100% of community property (Cal. Probate Code § 6401(a)).
Separate property: Assets owned before marriage, plus gifts and inheritances received during marriage. The split depends on who else survives the decedent — see below.

How separate property is divided

Cal. Probate Code § 6401(c) sets the share of separate property the surviving spouse takes, based on the rest of the family:

Decedent leaves…	Surviving spouse gets	Rest goes to
Spouse and no issue/parents/siblings	100%	—
Spouse and one child (or issue of one deceased child)	1/2	1/2 to child or issue
Spouse and two or more children	1/3	2/3 split among children
Spouse and parent(s), no children	1/2	1/2 to parent(s)
Spouse and siblings only	1/2	1/2 to siblings

If there is no surviving spouse

Cal. Probate Code § 6402 sets the order:

Children (and the issue of any deceased child, by representation).
If no children, then parents.
If no parents, then siblings (and the issue of any deceased sibling).
If no siblings, then grandparents and their descendants.
If no grandparents, then next of kin.
If no next of kin, then the property escheats to the State of California.

What to do if a loved one died without a will

Confirm no will exists. Check safe deposit boxes, attorney files, and home filing cabinets. If a will surfaces later in probate, the case has to be reopened.
Identify all heirs. Build out the family tree. Missing heirs delay every step of the probate process.
File a Petition for Probate (Form DE-111) in the decedent's county, requesting Letters of Administration (the form Letters take when there is no will).
Identify community vs. separate property. This drives the spouse's share. Marriage date, source of funds, and how title was held all matter.
Notify all heirs at law. Even heirs who will receive nothing must be served if they are in the statutory chain.

Frequently asked questions

Does the surviving spouse get everything if there is no will?: For community property — yes, 100%. For separate property, the spouse's share depends on whether the decedent left children, parents, or siblings. The split can be as low as 1/3 of separate property.
What about unmarried partners?: California intestate succession does not recognize unmarried partners as heirs — even after decades of cohabitation. Without a will, trust, or registered domestic partnership, the partner inherits nothing under the statute.
Do stepchildren inherit?: Generally no — only legally adopted children. There is a narrow exception under Cal. Probate Code § 6454 for foster-child / stepchild relationships that began during minority and continued throughout life if a legal barrier prevented adoption.
What if the decedent and spouse were separated but not divorced?: A pending divorce does not cut off intestate rights. Until the divorce is finalized, the surviving spouse is still legally the spouse and still inherits as such.
Can heirs agree to a different split?: Yes. Heirs can sign a written agreement after death changing the distribution — called an agreement among heirs — subject to court approval and tax planning.

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