What the rule says
California distinguishes community property (acquired during marriage) from separate property (owned before marriage or received during marriage as a gift or inheritance). When a married Californian dies without a will, community property passes entirely to the surviving spouse. Separate property follows a different rule under California Probate Code § 6401(c).
The surviving spouse's share of separate property depends on what other relatives survive:
- All separate property if there are no surviving issue (children, grandchildren, or further descendants), parents, brothers, sisters, or descendants of deceased brothers or sisters. - One-half of separate property if the decedent leaves only one child or the issue of one deceased child, or if the decedent leaves no issue but at least one parent surviving. - One-third of separate property if the decedent leaves more than one child, one child and the issue of one or more deceased children, or the issue of two or more deceased children.
Whatever portion does not pass to the surviving spouse goes under California Probate Code § 6402 to the decedent's children (and their issue), then to parents, then to siblings, and so on.
How the formula plays out
California residents are often surprised to learn that the surviving spouse does not automatically inherit all separate property. The statutory formula creates mandatory shares for children, parents, and siblings depending on the family structure.
A few common scenarios:
- A married Californian with two children dies without a will. The surviving spouse takes all community property and one-third of separate property. The children together take two-thirds of separate property. - A married Californian with one child from a prior relationship dies without a will. The surviving spouse takes all community property and one-half of separate property. The child takes the other half. - A married Californian with no children but a surviving parent dies without a will. The surviving spouse takes all community property and one-half of separate property. The parent takes the other half. - A married Californian with no children, no parents, and no siblings dies without a will. The surviving spouse takes everything, both community and separate.
For California residents with significant separate property — an inherited home, premarital savings, gifts received during marriage, a business owned before marriage — these formulas can produce mandatory distributions to relatives the decedent might have wanted to bypass entirely.
What you can do about it
A valid California will gives you complete control over how your separate property is distributed. With a will, you can leave separate property entirely to your spouse, entirely to your children, in any proportion you choose, or to other beneficiaries the intestacy formula does not contemplate.
Practical considerations:
- Title affects classification. Whether an asset is community or separate property is determined by how and when it was acquired. Holding separate property in joint title with the spouse may convert it (or part of it) to community property, which changes the intestate distribution. - Beneficiary designations override intestacy. Life insurance, retirement accounts, and payable-on-death bank accounts pass directly to named beneficiaries regardless of property classification. - A revocable living trust avoids both intestacy and probate. Separate property transferred into a properly funded trust passes per the trust instrument.
A valid California will requires your signature in the presence of two witnesses, both of whom must sign (Cal. Probate Code § 6110). California recognizes holographic wills entirely in your handwriting, without witnesses.
Who this affects most
The separate property formula is most consequential for:
- Married Californians with significant separate property (inherited assets, premarital savings, a business owned before marriage) - Households where children from a prior relationship would receive a mandatory share the decedent might have wanted directed differently - Married couples where one spouse has a surviving parent and significant separate property — the parent's mandatory one-half share often surprises survivors
California's two-formula intestacy system is one of the most consequential reasons for California residents to execute a will. The community property side is favorable for most couples; the separate property side rarely matches what a family would have chosen on its own.