Under California Probate Code section 6401, a surviving spouse who inherits from a spouse that died without a will receives all of the decedent’s community property, all of the decedent’s quasi-community property, and a share of separate property that ranges from one-third to everything, depending on which other relatives survive.1Justia Law. California Probate Code Section 6401 The statute only reaches assets that actually pass through probate, so a large part of many estates is decided somewhere else entirely.
Community Property: The Surviving Spouse Ends Up With All of It
California treats a marriage as an economic partnership. Each spouse already owns half of the community property under Probate Code 100, meaning assets either spouse acquired during the marriage through earnings or joint effort.2California Legislative Information. California Probate Code Section 100 When one spouse dies intestate, section 6401 gives the surviving spouse the decedent’s half as well.1Justia Law. California Probate Code Section 6401 The two halves combine, and the surviving spouse holds all of it.
This result does not shift based on which spouse earned more. Whether one spouse was the sole breadwinner or both contributed equally, community property splits 50/50 at death and the intestate share picks up the decedent’s half. Gifts and inheritances received during the marriage are not community property. Those count as separate property and follow the different rules below.
Quasi-Community Property
Quasi-community property is property acquired while the couple lived elsewhere that would have been community property if California had been home at the time. It matters for couples who built wealth in another state and later moved. Probate Code 101 treats the decedent’s half of quasi-community property the same way it treats community property: one half stays with the surviving spouse, and one half belongs to the decedent’s estate.3Justia Law. California Probate Code Section 101
Section 6401 then routes that decedent’s half to the surviving spouse, producing the same end result: the survivor keeps everything.1Justia Law. California Probate Code Section 6401 Without this rule, wealth built in Texas or Illinois could be treated as the decedent’s separate property in California, cutting the surviving spouse’s share sharply.
Separate Property: One-Third, One-Half, or All of It
Separate property is anything the decedent owned before the marriage, plus gifts and inheritances received at any time. The surviving spouse’s share depends on who else survived. Probate Code 6401(c) sets three tiers:1Justia Law. California Probate Code Section 6401
- All of the separate property, if no child, parent, sibling, or issue of a deceased child or sibling survives.
- One-half of the separate property, if the decedent leaves only one child (or the issue of one deceased child), or leaves no issue but is survived by a parent or parents.
- One-third of the separate property, if the decedent leaves more than one child, one child plus the issue of one or more deceased children, or the issue of two or more deceased children.
The line between one child and more than one child catches people off guard. A surviving spouse with one stepchild receives half the separate property; add a second child and the share drops to one-third. Any child of the decedent counts, including children from a prior relationship. They do not need to be biological children of the surviving spouse.
Where the Rest of Separate Property Goes
Whatever slice of separate property the surviving spouse does not take passes under Probate Code 6402. Children (or their descendants) come first, sharing equally. If no children survive, the property goes to the decedent’s parents. Then to siblings and their descendants, then grandparents and their descendants, and outward from there through progressively more distant relatives.4California Legislative Information. California Probate Code Section 6402
Section 6402 has one unusual feature. If no blood relatives of the decedent can be found, the property can pass to the parents or descendants of a predeceased spouse, meaning in-laws from an earlier marriage.4California Legislative Information. California Probate Code Section 6402 Only when no heir at all can be located does the property go to the state.
Who Counts as a Surviving Spouse
A finalized divorce ends spousal inheritance rights. Probate Code 78 says a person whose marriage has been dissolved or annulled is not a surviving spouse and takes nothing under intestacy.5California Legislative Information. California Probate Code 78
Legal separation is trickier. Section 78(d) also excludes anyone who was “a party to a valid proceeding concluded by an order purporting to terminate all marital or registered domestic partnership property rights.”5California Legislative Information. California Probate Code 78 California courts have read a judgment of legal separation as doing exactly that, holding that a legally separated spouse cannot inherit through intestate succession. The wills statute, Probate Code 6122, says the opposite for testamentary gifts: legal separation does not revoke provisions in a will the way divorce does.6California Legislative Information. California Probate Code Section 6122 The result is a gap that surprises people. Legal separation likely blocks intestate inheritance but does not automatically undo a will. Anyone in the middle of a separation should update the estate plan rather than rely on defaults.
Registered domestic partners are treated the same as spouses throughout California intestacy. Section 6401(c) explicitly extends its separate-property provisions to a “surviving domestic partner, as defined in subdivision (b) of Section 37.”1Justia Law. California Probate Code Section 6401 The partnership must have a Declaration of Domestic Partnership on file with the Secretary of State and must not have been terminated before the decedent’s death.7California Legislative Information. California Probate Code Section 37
Assets That Never Touch Section 6401
Section 6401 governs only property that actually passes through intestate succession. A large share of most estates never enters probate, and the surviving spouse can end up with a very different result than the statute alone would suggest. Common non-probate assets include:
- Retirement accounts such as 401(k)s, IRAs, and pensions, which pass to the named beneficiary. For employer plans governed by federal ERISA rules, a surviving spouse is automatically the beneficiary unless the spouse signed a written waiver.
- Life insurance proceeds, which go directly to the named beneficiary.
- Joint tenancy property, where the decedent’s share transfers automatically to the surviving joint tenant.
- Community property held with right of survivorship, which California allows married couples to title so it transfers directly to the survivor.
- Payable-on-death and transfer-on-death accounts, including bank accounts, brokerage accounts, and real property held under a revocable transfer-on-death deed.
- Assets held in a revocable living trust, which pass under the trust terms and bypass both probate and intestacy.
Section 6401 only picks up what is left after beneficiary designations, survivorship rights, and trust terms have done their work. For many California families, the intestacy rules end up controlling a smaller slice of the estate than the surviving spouse expects.
Blended Families and Prenuptial Agreements
Section 6401 is a default rule. A valid prenuptial or postnuptial agreement can override those defaults, sometimes dramatically. An agreement may reclassify community property as separate, waive each spouse’s inheritance rights, or narrow the reach of quasi-community property. California courts enforce these agreements when they meet the state’s disclosure and voluntariness requirements. Couples who want something different from the statutory result need the agreement in writing before it matters.
Blended families feel the defaults most sharply. When a parent dies intestate leaving a current spouse and children from a prior relationship, the surviving spouse takes all community property but only one-half or one-third of separate property.1Justia Law. California Probate Code Section 6401 The children from the earlier relationship take the remaining share of separate property under section 6402.4California Legislative Information. California Probate Code Section 6402 Stepchildren the decedent never legally adopted inherit nothing under intestacy, even if they grew up in the household. Dying without a will in this situation often produces a result the family would not have chosen.