What the rule says
California is a community property state. Property acquired during a marriage is presumed community property — owned equally by both spouses regardless of whose name appears on the title. Property owned before marriage, or received during the marriage as a gift or inheritance, is separate property — owned solely by the spouse who acquired it.
When a married California resident dies without a will, the law treats these two categories differently. Under California Probate Code § 6401(a), the entire community property estate passes to the surviving spouse. Quasi-community property — property acquired in another state that would have been community property if acquired in California — follows the same rule.
After the decedent's death, the surviving spouse owns all of the community property: the half they already owned plus the half that belonged to the deceased spouse.
What this means in practice
For most married California couples, this rule produces an outcome they would have wanted: assets accumulated during the marriage stay with the surviving spouse without needing a will to direct that result.
But the rule applies regardless of intent. If a married California resident wanted any portion of their community property half to pass to a child, parent, or other beneficiary, intestacy alone cannot achieve that. The community property automatically goes to the spouse. There is no inquiry into what the decedent would have preferred.
This matters most in blended families. A California parent who wanted children from a prior relationship to inherit some portion of community property — the family home purchased during the marriage, savings accumulated during the marriage, retirement accounts funded during the marriage — has no mechanism to achieve that without a will. The community property passes entirely to the current spouse.
Separate property is governed by a different California Probate Code section (§ 6401(c)) and a different formula. The spouse's share of separate property depends on what other relatives survive and is rarely 100%. A married California resident with both community and separate property therefore faces a two-formula intestate distribution: spouse takes all community, but spouse takes a fraction of separate.
What you can do about it
The only way to direct community property to anyone other than the surviving spouse is through a will or a trust. With a valid California will, you can leave your one-half interest in the community property to anyone — children, charity, a trust, or your spouse — in any proportion you choose.
A few practical points:
- Your will only controls your half of community property. The surviving spouse's half always belongs to that spouse and cannot be touched by your will. You cannot direct "the family home" by will if it is community property — you can only direct your one-half interest. - Beneficiary designations override intestacy. Life insurance, retirement accounts, and payable-on-death bank accounts pass directly to named beneficiaries regardless of community property classification. Review those designations separately. - A revocable living trust is an alternative. Community property held in a properly funded living trust passes per the trust instrument, outside both intestacy and probate.
A valid California will requires your signature in the presence of two witnesses, both of whom must sign in your presence (Cal. Probate Code § 6110). California also recognizes holographic wills — entirely in your handwriting and signed by you — without witnesses.
Who this affects most
This rule is most consequential for:
- Married California residents who want any portion of their community property half to pass to someone other than the surviving spouse - Blended families where the decedent might have wanted community assets to flow to children from a prior relationship - Households where the surviving spouse is provided for through other means and the decedent intended community assets to go elsewhere
California intestacy provides a default that works for many couples. For any household whose intentions differ from "all community to the surviving spouse," a will or trust is the necessary instrument.