Intestate Succession in California
What happens if you die without a will? Learn about intestacy in California
If you die without a will in California, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in California.
Which Assets Pass by Intestate Succession
Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.
Many valuable assets don’t go through your will, and aren’t affected by intestate succession laws. Here are some examples: [BSH1]
- property you’ve transferred to a living trust
- life insurance proceeds
- funds in an IRA, 401(k), or other retirement account
- securities held in a transfer-on-death account
- payable-on-death bank accounts
- vehicles held by transfer-on-death registration, or
- property you own with someone else in joint tenancy or as community property with the right of survivorship.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
Who Gets What in California?
Under intestate succession, who gets what depends on who your closest relatives are when you die. Here’s a quick overview:
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The Spouse’s Share in California
In California, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property – as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.
If you want to learn more about how community property works, read Separate and Community Property During Marriage: Who Owns What?
Your spouse will inherit your half of the community property. If you have separate property (many spouses mix everything together and don’t have any separate property) your spouse will inherit all or a portion of it. The size of your spouse’s share of your separate property depends on whether or not you have living parents, children, or siblings. If you do, they and your spouse will share your separate property.
If you and your spouse are legally separated -- but not yet divorced -- when you die without a will, your spouse will not be entitled to your property. If you’re concerned about this area of the law, see an experienced attorney for help.
In California, the rules for married people also apply to registered domestic partners.
Children’s Shares in California
If you die without a will in California, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of California must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
- Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do.
- Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share. However, a foster child or stepchild can inherit if he or she can prove that: 1) your relationship with the child began while the child was a minor and continued throughout your lifetimes, and 2) you would have adopted the child if it had been legally possible.
- Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their intestate inheritance.
- Posthumous children. Children conceived by you but not born before your death will receive a share. A child conceived with your genetic material within two years of your death will also receive a share if you left written permission for the material to be used. (Cal. Prob. Code § 249.5.)
- Children born outside of marriage. If you were not married or in a registered domestic partnership with your children’s mother when she gave birth to them, they may receive a share of your estate if they can prove that you acknowledged them as your children and contributed to their care and support.
- Children born during your marriage. Any child born to your wife or registered domestic partner during your marriage or partnership is assumed to be your child and will receive a share of your estate.
- Grandchildren. Your grandchildren will receive a share only if their parent (your child) has died before you do.
In case you want to read the law, Cal. Prob. Code §§ 6450–6455 covers parent-child relationships.
This can be a tricky area of the law, so if have questions about your relationship to your parent or child, get help from an experienced attorney.
Will the State Get Your Property?
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the children, parents, or siblings of a spouse who dies before you do.
Other California Intestate Succession Rules
Here are a few other things to know about California intestacy laws.
- Survivorship period. To inherit under California’s intestate succession statutes, a person must outlive you by 120 hours. So if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property.
- Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
- Posthumous relatives. Relatives conceived before--but born after--you die inherit as if they had been born while you were alive.
- Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
- Slayer rule. Someone who “feloniously and intentionally” kills you will not receive a share of your property. (California Probate Code §§ 250.)
To learn more about intestate succession, read How an Estate Is Settled When There is No Will.
You can find California’s intestate succession laws here: California Probate Code §§ 6400-6417.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
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