What Is Intestacy?

California intestacy laws determine what happens to your property when you die without a valid will. These state laws create a default roadmap for distributing your assets to family members, starting with your spouse and children. If you have no living family, your estate goes to the state.

Here's what you need to understand about how California handles intestate succession — and why having a will matters more than most people realize.

What Is Intestacy?

Intestacy is the legal term for dying without a valid will or trust. When this happens, California courts follow the rules laid out in the Probate Code, starting at Section 100. The court doesn't know your family dynamics, your wishes, or your relationships. It just follows the formula the legislature created.

I've seen families torn apart by intestacy disputes. A client came to me last year whose parents died in a car accident within months of each other — no will, no trust, just a house in Sacramento and some retirement accounts. The siblings ended up in probate court for three years fighting over things a simple will would have settled in an afternoon.

California's intestacy laws don't consider emotional relationships, promises made at deathbed, or the adult child who gave up their career to be a full-time caregiver. The law looks at legal family — spouse, children, parents, siblings — and applies percentages.

Example: "Tom never got around to making a will. He had been with Maria for 15 years — they just never married. When Tom died, Maria got nothing under California's intestacy laws. His adult son from a previous marriage inherited everything, including the house where Maria had lived for over a decade. She wasn't even considered a 'family member' under the law."

California's Default Beneficiaries

California divides intestate survivors into categories. The court starts with the first category and works down until it finds living relatives.

If You Have a Spouse and Children

Here's where it gets specific. California distinguishes between community property and separate property — this matters enormously.

Your spouse gets all community property plus a share of your separate property. Your children split whatever separate property remains. But here's the calculation that surprises people: your spouse gets one-third of your separate property if you have two or more children, or one-half if you have only one child.

Let's say you die with a spouse and two kids. You own a house worth $600,000 (community property — you bought it together during marriage). You also inherited $300,000 from your mother (separate property). Under intestacy, your spouse gets the entire house. Then the $300,000 separate property divides: your spouse gets $100,000 (one-third), and your two children split the remaining $200,000. Your spouse ends up with significantly more than the kids.

If You Have Children but No Spouse

Your children inherit everything, split equally. This includes children born outside marriage — California courts treat all legal children the same. Adopted children have inheritance rights equal to biological children. Stepchildren don't automatically inherit unless formally adopted.

If You Have No Children

The hierarchy moves to parents, then siblings, then nieces and nephews. Your spouse would inherit from you in these situations, but the percentages change based on which other family members survive you.

Registered Domestic Partners

California gives registered domestic partners the same inheritance rights as spouses under intestacy laws. This applies to same-sex couples who registered with the California Secretary of State. Unmarried partners — even those in long-term relationships — get nothing under intestacy, regardless of how long they lived together or how they shared finances.

"When there is no surviving spouse, domestic partner, or issue, the estate passes to the parent or parents of the decedent in equal shares if both survive, or to the surviving parent if only one survives."

— Probate Code § 6402

The Probate Process for Intestate Estates

When someone dies intestate in California, their estate typically goes through probate court. The court appoints an administrator — usually the surviving spouse or closest relative — to manage the estate. This person has legal authority to gather assets, pay debts, and distribute property according to intestacy rules.

California probate is a court-supervised process. The administrator must file inventories, provide notice to all heirs, and get court approval for major decisions. It takes time. Simple estates might take six months to a year. Complicated ones — with real estate, business interests, or family disputes — can stretch three years or longer.

The administrator role comes with responsibilities. They must act in the estate's best interests and follow California law. If they don't, interested parties can petition the court to remove them. I recommend reading the California Courts Self-Help Center's probate information before diving in.

⚠️ Watch Out: Heirs under intestacy have the right to contest the administration. If someone believes they were wrongly excluded — a missing child, a parent who should have inherited, a claim that the deceased actually had a will — they can file objections with the probate court. These disputes get expensive fast.

Community Property vs. Separate Property

California is a community property state. This affects how intestate estates divide. Here's what that means:

Community property includes everything you and your spouse acquired together during marriage — income, real estate purchased with that income, retirement accounts funded during marriage (unless a prenup says otherwise). Separate property is what you owned before marriage or received as a gift or inheritance during marriage.

When you die intestate, your spouse keeps their half of community property automatically. Only your half of community property plus your separate property gets distributed through intestacy. This is why understanding what you own matters.

Quasi-Community Property

This catches people off guard. Quasi-community property is property you would have acquired as community property if you'd lived in a community property state at the time. If you moved to California after accumulating assets with your spouse elsewhere, those assets get treated like community property for division purposes. This applies only to married couples — domestic partners don't have quasi-community property rules.

How to Avoid Intestate Succession

Here's the good news: intestacy is avoidable. You have options.

1. Create a Will

A will lets you name who inherits your property, designate guardians for minor children, and choose an executor to manage your estate. You can override California's default rules completely. A simple will costs a few hundred dollars with an attorney, though complex estates need more investment.

2. Establish a Revocable Living Trust

Trusts avoid probate entirely for assets held in the trust. Your trustee transfers property directly to beneficiaries without court involvement. This saves time and keeps your affairs private — probate records are public in California.

3. Beneficiary Designations

Retirement accounts, life insurance, and some bank accounts pass directly to named beneficiaries — outside both wills and probate. Make sure these designations match your overall estate plan. A beneficiary deed for real estate in California also transfers property outside probate.

4. Joint Ownership

Owning property jointly with right of survivorship means it passes automatically to the surviving owner. This works well for spouses but creates complications with other family members or if relationships change.

What most people don't realize is that beneficiary designations and joint ownership override whatever your will says. You can have a perfect will, but if your retirement account lists your ex-spouse as beneficiary, they get the money. Review these designations regularly, especially after major life changes.

What About Digital Assets?

California updated its laws to address digital assets — online accounts, cryptocurrency, social media. The Revised Uniform Fiduciary Access to Digital Assets Act, adopted here, gives you the ability to authorize or prohibit disclosure of digital assets to fiduciaries. Include language in your estate plan about digital assets, and consider keeping a secure list of accounts your executor can access.

When You Need an Attorney

Simple intestate estates with a surviving spouse and adult children who agree on everything? Maybe you can navigate that yourself using court self-help resources. But if there's any complexity — blended families, disagreements among heirs, business interests, real estate in multiple states, or claims from creditors — get an attorney involved.

Probate litigation over intestate estates can cost families far more than proper estate planning would have. I've seen siblings spend $150,000 fighting over a $200,000 inheritance. That's a lose-lose situation.

This isn't legal advice — please talk to an attorney about your specific situation. California's intestacy laws have nuances, and your circumstances may require personalized guidance.

Frequently Asked Questions

So what exactly happens if someone dies without a will in California? In California, the court follows intestacy laws in the Probate Code. Your spouse and children typically inherit, with percentages determined by how many people survive you. If no family exists, your estate goes to the state.

Does a common-law spouse have inheritance rights under California intestacy? California doesn't recognize common-law marriage, even if your partner was legally married to you in another state that does. Registered domestic partners have rights; unmarried partners do not. You need a will or trust to provide for an unmarried partner.

Can adult children inherit if there's a surviving spouse? Yes, but the spouse gets priority and a larger share. Under California law, children only inherit what's left after the spouse receives their share of community property and a portion of separate property.

How long does intestate probate take in California? Simple estates might complete in six months to a year. Complex estates with disputes, multiple properties, or creditor claims can take several years. Court schedules vary by county — Riverside County moves differently than San Francisco.

What if I want to disinherit someone who would normally inherit? You must explicitly state this in a will. Simply not mentioning someone isn't enough — California courts may assume they were accidentally omitted. A clear, unambiguous statement disinheriting specific individuals protects against later challenges.