If you die without a will in California, you die “intestate,” and the state’s intestate succession statutes decide who inherits your property, not you: the split depends on whether you are married, how many children you have, and whether each asset is community or separate property (Prob. Code § 6400).
Try the interactive version: enter your family shape and see who inherits
Here is the short version: California has already written a will for you. You just would not have chosen it. The law does not ask what you wanted. It applies a fixed formula based on your marital status, your children, and whether an asset is community or separate property, and it applies that formula the same way whether you meant to leave everything to your spouse or never got around to writing anything down.
Your spouse does not automatically inherit everything
California is a community property state, and intestacy treats the two kinds of property very differently (Prob. Code § 6401).
- Community and quasi-community property. Your surviving spouse takes their own one-half outright and inherits your one-half as well (Prob. Code § 6401(a)-(b)). The survivor ends up owning 100% of this property, but that is because they already owned half of it. Only the decedent’s half actually passes by intestate succession.
- Separate property. This is what you owned before the marriage or received individually by gift or inheritance. Here the spouse’s share depends entirely on who else survives you: all of it, one-half of it, or one-third of it (Prob. Code § 6401(c)). This is where the “my spouse gets everything” assumption breaks down, and where families are most often surprised.
Who inherits what: the full scenario table
The table below covers the situations that come up most often, from a surviving spouse with no other close relatives through the full order of relatives under Prob. Code § 6402 when there is no surviving spouse. Figures reflect Prob. Code §§ 6401-6402.5, current as of 2026.
| Family situation | Community & quasi-community property | Separate property |
|---|---|---|
| Married, no surviving children, parents, or siblings | Spouse: 100% (own half plus decedent’s half) | Spouse: all of it (Prob. Code § 6401(c)(1)) |
| Married, one surviving child (or issue of one deceased child) | Spouse: 100% | Spouse: one-half; child: one-half (Prob. Code § 6401(c)(2)) |
| Married, two or more surviving children | Spouse: 100% | Spouse: one-third; children split the remaining two-thirds (Prob. Code § 6401(c)(3)) |
| Married, no children, but a surviving parent or the parent’s issue | Spouse: 100% | Spouse: one-half; parent(s) or their issue: one-half (Prob. Code § 6401(c)(2)) |
| Unmarried, with surviving children | N/A, no community property without a spouse | Entire estate to issue (children, or grandchildren by representation) (Prob. Code § 6402(a)) |
| Unmarried, no children, surviving parent(s) | N/A | Entire estate to parents, in equal shares if both survive (Prob. Code § 6402(b)) |
| Unmarried, no children or parents, surviving siblings or their issue | N/A | Entire estate to siblings and issue of any deceased sibling (Prob. Code § 6402(c)) |
| No spouse, issue, parents, or siblings; surviving grandparents or their issue | N/A | Entire estate to grandparents or their issue (Prob. Code § 6402(d)) |
| No closer relatives; issue of a predeceased spouse survive | N/A | Entire estate to issue of a predeceased spouse (Prob. Code § 6402(e)) |
| No closer relatives; more distant next of kin survive | N/A | Entire estate to next of kin (Prob. Code § 6402(f)) |
| No closer relatives; parents of a predeceased spouse or their issue survive | N/A | Entire estate to parents of a predeceased spouse or their issue (Prob. Code § 6402(g)) |
| No heirs can be found anywhere in this order | N/A | Escheats to the State of California (extremely rare) |
How does California decide what is community versus separate property?
Because your intestate shares turn entirely on this distinction, how each asset is characterized controls who inherits it. As a general rule, anything either spouse earns or acquires during the marriage from work or income is community property, owned equally by both spouses as it is acquired. Anything either spouse owned before the marriage, or received individually during the marriage by gift or inheritance, is separate property, even if the marriage lasted decades. A bank account opened before the wedding and never commingled with marital funds stays separate. A house bought with a paycheck earned during the marriage is community property, even if only one spouse’s name is on the title. Property can also become mixed: a separate property down payment on a home later paid off with community income can leave both spouses with a community interest and the contributing spouse with a separate property reimbursement claim. Sorting this out correctly, asset by asset, is one of the more contested parts of any intestate estate, and it is exactly the kind of dispute a will or trust avoids by simply stating who gets what.
A blended family example
Say you remarried later in life. You have two adult children from your first marriage. Your current spouse has no children with you. Before this marriage, you bought a rental property outright, so it is your separate property, worth $600,000. The house you and your spouse live in now was purchased during the marriage with both incomes, so it is community property.
If you die without a will: the community property home passes entirely to your current spouse (Prob. Code § 6401(a)-(b)). The $600,000 rental is separate property, and because you leave two or more children, your spouse takes one-third ($200,000) while your two children split the remaining two-thirds, $400,000, between them (Prob. Code § 6401(c)(3)). Your children inherit directly from you. Your spouse does not need to be their parent, and your spouse’s own children, if any, inherit nothing from your estate unless you legally adopted them. A will or trust is the only way to change any of this.
The § 6402.5 quirk: property can revert to a first spouse’s family
One rule surprises even people who think they understand intestacy. If you inherited property from a spouse who died before you, and you later die intestate yourself, the portion of your estate attributable to that first spouse’s estate does not necessarily follow your own family line. Under Prob. Code § 6402.5, it can revert instead to that predeceased spouse’s relatives. Real property reverts this way if the predeceased spouse died within the last 15 years. Personal property worth $10,000 or more reverts this way if there is written title reflecting the transfer and the predeceased spouse died within the last 5 years. This is a narrow rule, but it matters most in second marriages and blended families, exactly the situations where people most need a will to make their intentions explicit.
For example: your first spouse died eight years ago and left you a rental property outright. You never remarry and have no children. When you later die intestate, your estate would ordinarily pass down the Prob. Code § 6402 order, for instance to your surviving parents or siblings. But because your first spouse died within the last 15 years, the portion of your estate attributable to that rental reverts instead to your first spouse’s own relatives under Prob. Code § 6402.5, ahead of your own parents or siblings taking that particular asset.
Does the state actually keep your property if you die without a will?
No, and this is one of the most persistent myths about intestacy. California runs through a long, specific order of relatives before an estate escheats: children, then parents, then siblings and their children, then grandparents and their issue, then next of kin, then even the relatives of a predeceased spouse (Prob. Code § 6402). Escheat to the State of California happens only when literally no one in that entire chain can be found. For most families, some heir, however distant, exists and will inherit. Escheat is real but extremely rare in practice.
What does intestate probate cost?
Dying without a will does not avoid probate. If your estate exceeds the small-estate thresholds, an intestate estate still goes through the same court-supervised probate as an estate with a will, on the same statutory fee schedule, typically taking twelve to eighteen months. Both the attorney and the personal representative are entitled to a statutory fee under Prob. Code §§ 10810 and 10800, calculated on the gross value of the estate, meaning debts and mortgages are not subtracted first: a $1,000,000 house with a $700,000 mortgage still counts at $1,000,000 for fee purposes.
| Gross estate value | Attorney fee (Prob. Code § 10810) | Personal representative fee (Prob. Code § 10800) | Combined, both fees taken |
|---|---|---|---|
| $500,000 | $13,000 | $13,000 | $26,000 |
| $1,000,000 | $23,000 | $23,000 | $46,000 |
| $2,000,000 | $33,000 | $33,000 | $66,000 |
Take a $1,000,000 estate: an intestate probate on that estate costs $46,000 in statutory fees alone, split between the attorney and the personal representative, before any extraordinary fees under Prob. Code § 10811 for unusual work, and before the twelve to eighteen months of delay while the court process runs. None of that pays for choosing who inherits. It only pays for administering the estate the law hands to your family by default.
What people, and AI tools, often get wrong about intestacy
- “My spouse inherits everything.” True only for community and quasi-community property. Separate property splits all, one-half, or one-third under Prob. Code § 6401(c), depending on surviving children, parents, and siblings.
- Applying another state’s “elective share” rules. California uses community property intestacy, not the common-law elective-share model used in many other states. The two systems produce different numbers for the same family.
- Assuming intestacy avoids probate. It does not. Dying without a will usually means a full, court-supervised probate on the same statutory fee schedule, on top of losing control over who inherits.
- Assuming the state keeps unclaimed property quickly. Escheat is the last resort in a long chain of relatives under Prob. Code § 6402, not a common outcome.
Frequently asked questions
Does my spouse automatically inherit everything if I die without a will in California?
No. Your spouse takes 100% of the community and quasi-community property because they already owned half of it, but your separate property is split under Prob. Code § 6401(c): all of it with no surviving children, parents, or siblings; one-half with one child or a surviving parent line; one-third with two or more children.
Who inherits if I die unmarried in California?
Your entire estate passes down the order in Prob. Code § 6402: first to your children (or their issue), then your parents, then your siblings and their issue, then grandparents and their issue, then issue of a predeceased spouse, then more distant next of kin, then a predeceased spouse’s parents or their issue. Escheat to the state happens only if none of these relatives can be found.
Do stepchildren or an unmarried partner inherit under California intestacy?
Generally no. Intestate succession runs to a surviving spouse and to blood or legally adopted relatives under Prob. Code §§ 6401-6402. A stepchild you never adopted and an unmarried partner take nothing by intestacy, which is why a will or trust is the only way to provide for them.
Does dying without a will avoid probate in California?
No. Intestacy changes who inherits, not whether the court is involved. An intestate estate above the small-estate thresholds still goes through a full, court-supervised probate under the same statutory fee schedule (Prob. Code §§ 10800, 10810), typically taking twelve to eighteen months.
Does the State of California keep my property if I have no will?
Almost never. The state works through a long chain of relatives, out to a predeceased spouse’s own family, before an estate escheats (Prob. Code § 6402). Escheat only happens when no one anywhere in that chain can be found, which is rare.
What is the one thing to remember about dying without a will in California?
California has already written a will for you. You just would not have chosen it. The state’s formula does not know your family, your wishes, or your blended-family arrangements. It applies the same fixed shares to everyone.
Related reading: Wills, Probate, Probate Fee Calculator, Estate Planning, and Fees.
A will or living trust is the only way to override the default rules above and make sure the people you actually intend to provide for, including stepchildren, an unmarried partner, or a specific split among your own children, actually inherit.
Want a straight read on where you stand?
Talk to Eric. A free 30-minute call, no pitch. He’ll tell you where you’re exposed, what it would cost to fix, and what you can skip.
Talk to Eric