When a spouse dies in California, community property splits in half at the moment of death: the surviving spouse already owns one half outright, and the deceased spouse’s half passes according to their will, their trust, or, if they left neither, California’s intestate succession rules. That is the whole framework of California community property at death, and everything else — probate, taxes, shortcuts, disputes — flows from it.
The half that belongs to the surviving spouse was never part of the decedent’s estate. No court redirects it. No will can give it away. It simply keeps belonging to the person who already owned it. The real question in any California estate is what happens to the decedent’s half.
The 50/50 Rule
California Probate Code Section 100 sets the baseline: on the death of a married person, one half of the community property belongs to the surviving spouse, and the other half belongs to the decedent.1Justia. California Code PROB 100-105 – Community and Quasi-Community Property That decedent’s half is what gets distributed, taxed, and (sometimes) fought over.
If Your Spouse Left a Will
A will controls the decedent’s half. Your spouse could leave that half to you, to children from a prior marriage, to a sibling, to a charity, or to anyone else. A common assumption is that community property has to go to the surviving spouse no matter what the will says. It doesn’t. Only your own half is protected that way. Your spouse’s half follows the will.
When there is a will and no trust, the estate typically goes through probate, a court-supervised process in which a judge validates the will and a personal representative gathers assets, pays debts, and distributes what’s left to the named beneficiaries.2California Courts. Guide to Property After Someone Dies A complicated probate can run a year or more.
If Your Spouse Left No Will
Under Probate Code Section 6401, if a married person dies without a will, the surviving spouse inherits the decedent’s half of all community property.3California Legislative Information. California Code PROB 6401 – Intestate Share of Surviving Spouse Added to the half the survivor already owned, that means one hundred percent of the community property ends up with the surviving spouse.
Separate property is a different story, and that catches families off guard. Under intestate succession, separate property can be split among the surviving spouse and the decedent’s children, parents, or siblings, depending on who is alive. So “no will” produces a clean result for community property and a messier one for anything held separately.
Community Property Versus Separate Property
Only community property splits 50/50 at death. Assets one spouse owned before the marriage, and gifts or inheritances received by one spouse during the marriage, are separate property. The decedent has full control over separate property in a will, and its intestate distribution can include people other than the surviving spouse.
California presumes that anything acquired during the marriage is community property. A spouse claiming an asset is separate has to prove it, usually through financial records that trace the funds back to a separate source. Once separate and community money have been mingled in the same accounts for years, sorting them out generally requires a forensic accountant, and the disputes are among the most contentious in estate litigation. Keeping separate property in dedicated accounts from the start avoids all of that.
What About Property From Another State
Couples who move to California from a non-community-property state often assume their old assets stay under the old rules. They don’t. Property a spouse acquired elsewhere that would have been community property if acquired in California is treated as quasi-community property. Under Probate Code Section 101 it splits 50/50 at death, the same as community property.1Justia. California Code PROB 100-105 – Community and Quasi-Community Property And under Section 6401, if there is no will, the surviving spouse inherits the decedent’s half of the quasi-community property too.3California Legislative Information. California Code PROB 6401 – Intestate Share of Surviving Spouse If you moved to California with significant assets already in hand, your estate plan should say so explicitly.
Ways to Skip Full Probate
Full probate is slow and expensive. California gives surviving spouses several routes around it.
Spousal Property Petition
This is the tool most surviving spouses should know about. Probate Code Section 13500 provides that when community property passes to the surviving spouse, either by will or by intestate succession, no full administration is required.4Justia. California Code PROB 13500-13506 – Spousal Property Petition Instead, the survivor files a petition asking the court to confirm ownership. It often wraps up in weeks rather than months.
Small Estate Affidavit
If the total value of the decedent’s California property is $208,850 or less, a successor can collect the assets by presenting a signed affidavit directly to whoever holds them — a bank, a brokerage, a transfer agent.5California Courts. DE-300 Maximum Values for Small Estate Set-Aside and Disposition The affidavit can’t be used until at least 40 days after the death.6California Legislative Information. California Code PROB 13100 – Affidavit for Collection of Personal Property Because the threshold applies only to the decedent’s half, a couple with more than $400,000 in community assets can still qualify if the decedent’s share falls below the limit.
Community Property With Right of Survivorship
Spouses can title community property with a right of survivorship.7California Legislative Information. California Code FAM 750 – Forms of Property Ownership When property is held that way, the decedent’s share passes to the survivor automatically at death, without court involvement, similar to joint tenancy. The key difference from joint tenancy is that this form of title preserves the full basis step-up on both halves, discussed below. It is one of the most underused planning tools in the state.
Living Trusts and Beneficiary Designations
A revocable living trust holds community property during the couple’s lifetimes and distributes it on death according to the trust terms, with no probate. Retirement accounts, life insurance, and payable-on-death bank accounts work the same way: they pass to whoever is named as beneficiary, no matter what the will says. Between a trust and properly filled-out beneficiary forms, most families can eliminate court involvement entirely.
What Probate Costs If You End Up There
California sets both attorney fees and personal representative fees by statute on a sliding scale of the estate’s gross value. The published rates are 4% on the first $100,000, 3% on the next $100,000, 2% on the next $800,000, 1% on the next $9,000,000, and 0.5% on the next $15,000,000, with anything over $25,000,000 set by the court as a reasonable amount. The personal representative receives the same fee schedule on top of the attorney’s.8Justia. California Code PROB 10810-10814 – Attorney and Representative Compensation
The fees are calculated on gross value, not net. A $1 million home with a $700,000 mortgage still generates fees on the full $1 million. On a $1 million estate, statutory attorney and representative fees together come to $46,000 before any extraordinary fees are added. That math is why so many California families set up trusts.
The Double Basis Step-Up
Community property carries a federal tax advantage that most people don’t learn about until after a death. Under 26 U.S.C. § 1014, when one spouse dies, both halves of community property receive a stepped-up basis to fair market value, not just the decedent’s half.9Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent Joint tenancy only steps up the decedent’s half.
Consider a couple who bought a home for $200,000 decades ago and it is worth $1.2 million when one spouse dies. Held as community property, the survivor’s basis in the whole property resets to $1.2 million, and a sale the next day produces no capital gains tax. Held in joint tenancy, only half steps up. The survivor’s basis lands at $700,000, and a sale produces a potential $500,000 gain. On a California home that has appreciated for decades, the difference is often six figures in tax.
If the Will Was Written Before the Marriage
Getting married after writing a will doesn’t disinherit the new spouse. Under Probate Code Section 21610, an omitted spouse receives a statutory share consisting of the decedent’s half of community property, the decedent’s half of quasi-community property, and a portion of separate property equal to the intestate share, capped at half the separate property’s value.10California Legislative Information. California Code PROB 21610 – Omitted Spouses
The protection does not apply if the will shows the omission was intentional, if the decedent provided for the spouse outside the will with evidence that those transfers were meant as a substitute, or if the spouse signed a valid waiver.11Justia. California Code PROB 21611 – Exceptions to Omitted Spouse Share Relying on the omitted spouse statute is a gamble. Updating the will avoids the fight.
Prenuptial and Postnuptial Agreements
A valid prenup or postnup can override the default rules. These contracts can reclassify community property as separate, waive a spouse’s rights in the other’s earnings, or set entirely different distribution terms. They hold up at death when properly drafted and executed. The risk is enforceability: an agreement signed under pressure, without adequate financial disclosure, or without a real chance to consult independent counsel can be thrown out, and a flawed agreement can generate years of litigation before anyone receives a dollar.
Refusing an Inheritance
A surviving spouse can also decline to inherit. Under Probate Code Section 275, a beneficiary may disclaim an interest, in whole or in part, by filing a written disclaimer identifying the creator of the interest, describing the property, and stating the extent of the disclaimer.12California Legislative Information. California Code PROB 275-286 – Disclaimer of Interests Once filed, it is permanent.
The usual reason is tax planning. If the surviving spouse already has a large estate, accepting the inheritance may enlarge the eventual estate tax when the survivor dies. Disclaiming lets the property pass to the next beneficiary in line, often the couple’s children, without stopping in the survivor’s estate first. The disclaimer has to happen before the beneficiary accepts or uses any of the property, so the decision needs professional tax advice and it needs to happen quickly.