What Happens If You Die Without a Will in California?

General information, not legal advice. Attorney advertising. Reading this article does not create an attorney-client relationship. See the important information at the end of this article.

Who inherits: community vs. separate property

California is a community property state. Property acquired during marriage is generally community property; property you owned before marriage or received by gift or inheritance is generally separate property. Intestacy rules treat the two differently.

If you are married (or a registered domestic partner)

• Community and quasi-community property: all of it goes to your surviving spouse or registered domestic partner (Probate Code § 6401(a)–(b)).
• Separate property (§ 6401(c)):
  • All to your spouse if you leave no children or other descendants, parents, siblings, or descendants of siblings.
  • One-half to your spouse if you leave one child (or descendants of one deceased child), or no children but a parent or parents or their descendants.
  • One-third to your spouse if you leave more than one child, or one child plus descendants of a deceased child.

The rest of the separate property passes to the other relatives under § 6402. Example: a San Diego widow’s second husband dies owning a condo he bought before their marriage, and he has two adult children. His wife receives one-third of the condo; his two children share two-thirds — likely leaving the surviving spouse as co-owner with stepchildren.

If you are not married

Under Probate Code § 6402, your estate passes in this order, with each level inheriting only if there is no one at the level before:

1. Your children (and descendants of a deceased child)
2. Your parents
3. Your siblings (and descendants of deceased siblings)
4. Your grandparents and their descendants (aunts, uncles, cousins)
5. More remote relatives, including relatives of a predeceased spouse in some cases

If no relative can be found, the estate goes to the State of California (escheat, Probate Code § 6800).

Who is left out

• Unmarried partners, no matter how long you lived together, unless you are registered domestic partners.
• Stepchildren and foster children, except in limited circumstances (§ 6454).
• Friends and charities you meant to support.

What happens to your minor children

Without a will, you have not nominated a guardian. If both parents are gone, the court appoints a guardian of the person after considering the child’s best interests — and relatives may disagree about who it should be. Money a minor inherits generally must be managed through a court-supervised guardianship of the estate or another court-approved arrangement, and the child receives it outright at 18. A will (or a trust with a pour-over will) lets you name the guardian and decide when your children receive their inheritance.

Probate and who is in charge

If the estate exceeds the small-estate limit ($208,850 for deaths on or after April 1, 2025, Probate Code § 13100), someone must petition the San Diego County Superior Court to be appointed administrator. The law sets a priority list starting with the surviving spouse or domestic partner, then children, and so on (§ 8461). The estate pays statutory fees under §§ 10800 and 10810 — see How much does probate cost in California?. Smaller estates may use simplified procedures.

Three common San Diego scenarios

A young married couple with a toddler. They own their Mira Mesa condo as community property. If one spouse dies, the survivor generally receives the community property. But if both die together, their child inherits everything — managed through a court process until age 18, and with a court choosing the guardian. A will naming a guardian and a trust holding assets until a later age solves both problems.

A blended family. A husband owns a home he bought before his second marriage. Without a plan, his wife receives only a share of that separate property and becomes co-owner with his children from his first marriage. Many couples want something different — for example, letting the surviving spouse live in the home for life, then passing it to the children — and only a will or trust can provide that.

A single adult with a long-term partner. If they are not married or registered domestic partners, the partner inherits nothing under intestacy; the estate goes to the decedent’s children, parents or siblings.

Common myths

• “The state takes everything.” Rarely. The state receives an estate only when no relatives can be found.
• “My spouse gets it all.” Under intestacy, only community and quasi-community property passes entirely to a surviving spouse; separate property may be shared with other relatives.
• “Retirement accounts follow my will.” Accounts with beneficiary designations pass to the named beneficiary, with or without a will. If no beneficiary is named or alive, the account may fall into the estate.
• “A verbal promise counts.” California does not recognize oral wills.

How to avoid intestacy

• Sign a will — at minimum — naming your beneficiaries, executor and guardians.
• Consider a revocable living trust to also avoid probate and plan for incapacity.
• Review beneficiary designations on retirement accounts and life insurance.
• Add a durable power of attorney and advance health care directive — intestacy rules don’t help you while you are alive.