Intestate Share of Surviving Spouse Under California Law

When a person dies without a will, intestate, your state's probate code outlines what will happen to their estate. California, being a community property state, has three different classifications of property to administer: Community Property, Quasi-Community Property, and Separate Property. Spouses and domestic partners are treated interchangeably for the purposes of this post, and within the relevant code sections.

Community Property, sometimes referred to as marital property, is anything earned during the course of marriage that isn't by gift, bequest, or devise. This includes things such as wages, interest on bank accounts, accrual of retirement benefits, etc. Under the California Probate Code, the surviving spouse is entitled to the decedent's entire share of the Community Property (CP). By definition, the surviving spouse is already technically the owner of the other half of the CP.

As to the Quasi-Community Property, the surviving spouse is also entitled to the spouse's half of this property. This is because by its very nature, Quasi-CP is supposed to be dealt with in the same legal manner as CP.

The distribution of the Separate Property, however, is somewhat more complicated. The surviving spouse's share of separate property is as follows:

If the decedent did not leave any surviving issue (typically a child, but in any case a descendant), parent, brother, sister, or issue of a deceased brother or sister (nieces or nephews, etc.), then the surviving spouse is entitled to the entire intestate estate.

On the other hand, the surviving spouse is entitled to a one-half share of the intestate estate if either:

  • The decedent leaves only one child or issue of one deceased child (e.g. grandchild), OR
  • The decedent leaves no issue, but leaves a parent or parents or their issue (siblings), or the issue of either of them (could be nieces or nephews or perhaps half-siblings, etc.).

It is important to note, however, that these parties will not be entitled to an equal one-half share, but rather whatever relevant fraction of that one-half.

In the final scenario, the spouse is entitled to a one-third share of the intestate estate in the following scenarios:

  • The decedent leaves more than one child
  • The decedent leaves one child and the issue of one or more deceased children. (For example, in an earlier hypothetical, the person has children A, B, and C, and A and C are dead but have living children, those children are the ones indicated here)
  • The decedent leaves the issue of two or more deceased children. (This is the scenario where all of the decedent's children have predeceased him, but have left living children, thus the decedent's grandchildren, or great-grandchildren, etc.)

As is the case in the second situation, the spouse's share will never be less than one-third, and the surviving children or issue will have to share the remaining 2/3 of the estate according to however many heirs there are.

It is also important to note that these rules can apply even when a will is in place due to the omitted spouse share, or other factors which render the will legally unenforceable. This is one of the reasons why meeting with an Estate Planning Attorney is integral to ensure that your last will & testament clearly expresses your intent, so that your loved ones will be taken care after you are gone according to your wishes.

Tomorrow I will discuss the intestate share of heirs other than the spouse. Get ready for an even more complicated list of relationships!