Key Takeaways

• When someone dies without a will (“intestate”) in California, state law — not the family — decides who inherits.
• The split depends on whether property is community or separate, and who survives (spouse, children, parents, siblings).
• A surviving spouse generally takes all the community property, and a share of separate property that depends on how many children or other relatives survive.
• Without a spouse or children, the estate passes outward to parents, siblings, and more distant relatives.
• Intestate succession rarely matches what people would have chosen — which is why a will or trust matters.

What “Intestate” Means

When a person dies without a valid will, they’re said to have died intestate — and California law steps in to decide who inherits, through a set of rules called intestate succession. These rules are essentially the state’s default estate plan: a fixed formula that distributes the estate to the closest surviving relatives in a set order, regardless of what the deceased person might have wanted or said informally.

That’s the crucial point. Intestate succession doesn’t ask what would be fair, what the person promised, or what the family agrees on. It applies a formula. Sometimes the result matches what the person would have chosen; often it doesn’t — leaving out unmarried partners, stepchildren, friends, and charities entirely, and dividing property in ways that surprise families. Understanding the formula tells you who actually inherits when there’s no will.

Community Property vs. Separate Property

California is a community property state, and that distinction drives intestate succession. Broadly:

• Community property is, generally, what the spouses acquired during the marriage through their efforts.
• Separate property is, generally, what a spouse owned before marriage or received during marriage by gift or inheritance.

The intestacy rules treat the two very differently, especially for a surviving spouse — so the first step in any intestate estate is sorting which property is which. This is also where things get technical fast, because characterizing property isn’t always obvious.

What the Surviving Spouse Inherits

If there’s a surviving spouse (or registered domestic partner, treated the same way), they do well under California’s rules:

• Community property: the surviving spouse generally inherits all of it. The deceased spouse’s half of the community property passes to the survivor, who already owned the other half — so the survivor ends up with the whole.
• Separate property: here it depends on who else survives:

• If the deceased left no children, parents, or siblings, the spouse takes all the separate property.
• If the deceased left one child (or that child’s descendants), or no children but a parent or sibling, the spouse takes half the separate property.
• If the deceased left two or more children (or their descendants), the spouse takes one-third of the separate property.

The rest of the separate property passes to the children, parents, or siblings as the case may be. So a surviving spouse with children does not automatically inherit everything — the children take a share of the separate property, which surprises many families.

Lost a spouse who left no will and unsure who inherits what? The community-versus-separate-property split can get complicated fast. Bay Legal can help you sort it. For guidance on your specific situation, call (650) 668-8000 or schedule a consultation at baylegal.com/contact.

What Happens With No Spouse

If there’s no surviving spouse, the estate passes to the next in line, in this general order:

1. Children (and the descendants of any deceased child), who share the estate.
2. If no children or descendants, the deceased person’s parents.
3. If no parents, the deceased person’s siblings (and their descendants).
4. From there, outward to more distant relatives — grandparents, aunts and uncles, cousins — in the order the law specifies.
5. If no relatives can be found at all, the estate ultimately escheats (passes) to the state — a rare outcome, but the endpoint of the chain.

Within a class, the estate is divided among the people at that level, with a deceased member’s share generally passing to their own descendants.

The Wrinkles That Catch Families

Several intestacy rules surprise people:

• Stepchildren and unmarried partners get nothing under intestate succession unless they were legally adopted or married — no matter how close the relationship.
• Half-siblings generally inherit the same as full siblings.
• Adopted children inherit as biological children; the rules on stepparent and foster relationships are specific.
• A 120-hour survival rule generally requires an heir to outlive the deceased by at least five days to inherit.
• Predeceased relatives’ shares pass down to their descendants under a representation formula.
• Certain older real property and titled assets can be subject to special rules where a predeceased spouse’s family is involved.

These details mean intestate outcomes are often not what anyone expected — which is the strongest argument for not leaving them to chance.

Intestate succession rarely matches what a family assumes — and the surprises are common. If you’re working through an estate with no will, Bay Legal can help you get the shares right. For guidance on your specific situation, call (650) 668-8000 or schedule a consultation at baylegal.com/contact.

The Takeaway: This Is the State’s Plan, Not Yours

Intestate succession exists as a backstop, not as anyone’s ideal plan. It can’t account for blended families, unmarried partners, specific gifts, charitable wishes, or any of the personal choices a will or trust expresses. The way to control who inherits — and to spare your family the rigid, sometimes surprising default — is to make an estate plan. Intestacy is what happens when you don’t.

How This Fits With the Rest of Probate

Intestate succession determines who inherits when there’s no will; the estate still goes through probate (or a simplified procedure if small enough), with an administrator appointed to run it. A minor who inherits needs special handling — see minor’s inheritance. To avoid intestacy entirely, see how to avoid probate and the value of an estate plan. For the full process, our complete guide to California probate.

Frequently Asked Questions

Who inherits if you die without a will in California?

State law decides, in order: a surviving spouse or domestic partner (all community property, plus a share of separate property), then children, then parents, then siblings, then more distant relatives. Without any relatives, the estate passes to the state.

Does a surviving spouse inherit everything in California?

Not always. A spouse generally inherits all the community property, but their share of the deceased’s separate property depends on whether children, parents, or siblings also survive — sometimes half or a third, with the rest going to those relatives.

Do stepchildren or unmarried partners inherit under intestate succession?

Generally no. Intestate succession follows legal relationships — marriage and (biological or adoptive) parent-child ties. Stepchildren and unmarried partners typically inherit nothing unless legally adopted or married, regardless of closeness.

What happens to separate property when there are children?

The surviving spouse takes half the separate property if there’s one child (or no children but a parent or sibling), and one-third if there are two or more children. The children take the rest.

Does dying without a will avoid probate?

No. An intestate estate still goes through probate (or a simplified procedure if it’s small enough), with the court appointing an administrator to handle it under the intestacy rules.