What Happens If You Die Without a Will in California?
If you die in California without a valid will, the state doesn’t leave your property in limbo — it applies a fixed statutory formula called intestate succession. Knowing this formula matters whether you’re prepping for the California Bar Exam or just want to understand what happens to your family if you never get around to writing a will.
The rules split into two completely separate tracks: one for community and quasi-community property, and one for separate property. Mixing them up is the single most common mistake on this topic — both on exams and in real estate planning conversations.
What Is Intestate Succession?
Intestate succession is the statutory scheme that distributes a decedent’s property when no valid will exists, or when a will doesn’t dispose of everything. In California, it’s governed by Probate Code Sections 6400 through 6455, and it treats community property and separate property completely differently.
Rule One: Community and Quasi-Community Property Always Goes 100% to the Spouse
This is the easy part. If the decedent leaves community or quasi-community property, the surviving spouse ends up with all of it — their own one-half by ownership under Probate Code Sections 100–101, plus the decedent’s one-half by intestacy under Section 6401(a)-(b). Children and other relatives get nothing from this category, no matter how many there are.
Rule Two: Separate Property Follows a Different Formula
Separate property is where the fractional shares live. Under Probate Code Section 6401(c), the surviving spouse’s share depends on who else survives:
| Who Else Survives | Spouse’s Share of Separate Property |
|---|---|
| No issue, parent, sibling, or issue of a sibling | 100% |
| One child (or the issue of one deceased child), or no issue but a surviving parent | 1/2 |
| More than one child, or multiple lines of issue | 1/3 |
Note the common trap here: students default to “spouse gets 1/3 whenever there are kids.” That’s wrong. One line of surviving issue means one-half, not one-third.
What Happens to Separate Property Once the Spousal Share Is Set?
Whatever’s left after the spouse’s share (or the entire separate-property estate, if there’s no spouse) passes down a strict priority ladder under Probate Code Section 6402:
- Issue (children and descendants)
- Parents, if no surviving issue
- Issue of parents — siblings, then nieces/nephews by representation
- Grandparents or their issue
- Issue of a predeceased spouse, next of kin of equal degree, and the predeceased spouse’s parents or their issue
- Escheat to the state, only as a last resort
Each category only inherits if every category above it is empty. A surviving parent never competes with a surviving child — issue always come first.
How Descendants Split Their Share: Per Capita With Representation
California does not use classic per stirpes, and it doesn’t use pure per capita either. It uses a hybrid called per capita with representation (Probate Code Section 240): the estate is divided into equal shares at the first generation with a living member, and the shares of any deceased members of that generation are combined and redivided among their own descendants.
Calling California’s method “per stirpes” without qualification is imprecise enough to cost points on the bar exam.
Worked Example: The Ramirez Family
Roberto dies intestate in California, owning $600,000 in separate property and no community property. He’s survived by his spouse Diane, his living son Marcus, his deceased daughter Elena’s two children (Elena’s kids Nate and Priya), and his own surviving mother.
Analysis: Two lines of issue survive — Marcus’s line and Elena’s line through Nate and Priya — so under Section 6401(c), Diane’s share is one-third, not one-half. Diane takes $200,000. The remaining $400,000 passes to issue under Section 6402(a), divided per capita with representation: at the children’s generation, Marcus takes half ($200,000), and Elena’s half ($200,000) is redivided equally between Nate and Priya, $100,000 each. Roberto’s mother takes nothing — parents only inherit if there’s no surviving issue, and issue survive here. Final result: Diane $200,000; Marcus $200,000; Nate $100,000; Priya $100,000; mother $0.
The Escheat Doctrine
If no relative within the Section 6402 ladder can be found or exists, the estate escheats to the state. This is rare — California maintains unclaimed-property searches to locate heirs before that happens — but it’s the true last resort when the priority ladder comes up empty.
Why This Matters If You’re Not a Law Student
If you don’t have a will, the state’s formula decides everything, and it may not match what you’d have chosen. Unmarried partners get nothing under intestate succession, no matter how long the relationship lasted. Stepchildren you never legally adopted get nothing either. If those gaps matter to you, a will — even a simple one — closes them.
Frequently Asked Questions
Does my spouse automatically get everything if I die without a will in California?
Only for community and quasi-community property. For your separate property, your spouse’s share depends on who else survives — it could be 100%, 1/2, or 1/3, and your children (or parents, if you have none) may take the rest.
What does “per capita with representation” actually mean?
It means the estate is split into equal shares at the closest generation with a living relative, and any deceased relative’s share is passed down to their own children in equal parts — rather than always dividing at the children’s level regardless of who’s alive.
What if I have no living relatives at all?
Your estate escheats to the state of California, but only after unclaimed-property searches fail to locate any heir within the statutory priority order, all the way out to issue of a predeceased spouse.
Key Takeaways
- Community and quasi-community property always passes 100% to the surviving spouse in intestacy — no fractional shares apply.
- Separate property follows Probate Code Section 6401(c): 100%, 1/2, or 1/3 to the spouse depending on how many lines of issue (or a surviving parent) exist.
- After the spousal share, separate property passes down the Section 6402 ladder: issue, parents, issue of parents, grandparents, then more remote relatives, then escheat.
- California uses per capita with representation (Section 240), not classic per stirpes or pure per capita.
- Unmarried partners and non-adopted stepchildren get nothing under intestate succession — a will is the only fix.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.
Related guides
- pretermitted child in California
- elective share in California
- California probate process
- intestate succession spouse share
- community property definition