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Who Inherits in California if My Spouse Dies Without a Will?

Posted by Nina Whitehurst | Dec 17, 2019 | 0 Comments

Many married couples in California think that if one of them dies without a will, the other will inherit everything from the deceased spouse.  That is only true in some, not all, circumstances.  Whether you intend to or not, if you fail to do some kind of estate planning, you could end up disinheriting your spouse to some extent.

Dying without a will is called dying "intestate".  When a person dies without a will, state law determines who inherits.   Those laws are sometimes referred to as the rules of "intestate succession".  The rules of intestate succession vary widely and the results in some cases can be truly surprising.

Take for example a highly traditional family consisting of mom, dad and a couple of minor children of the marriage and no children from previous relationships.  Most married couples under these circumstances would want the spouse to inherit 100% because he or she is going to need all of the deceased spouse's resources (and then some, usually) to raise the children to maturity.  

However, that would not be the case in California (see chart below) unless the deceased spouse that died intestate had no separate property, no surviving children and no surviving parents.  The children would inherit some portion or the decedent's separate property, up to as much as one-half.  That could leave the surviving spouse seriously strapped for money.

The funds inherited by the children usually end up in some kind of court-supervised, blocked account.  The intent is to keep the children's inheritance safe and intact until they reach the age of majority.  If the surviving spouse wants access to any of those funds, he or she must petition the court for permission.  The custodian of the account (who may or may not be the surviving spouse) must provide regular accountings to the court.

If you want to make things easy on your surviving spouse and ensure that he or she inherits everything, you might need a will or a trust to accomplish that, depending on where you live and your individual circumstances.

Take a look at the chart below for a sampling of the laws of intestate succession in California for the disposition of estates when there is a surviving spouse and no will.  You might find the result surprising. 

If you die with                                                                Here's Who Inherits in California

Spouse but no descendants or parents                          Spouse inherits everything

Spouse and descendants                                               Spouse inherits all of your community property and 1/3 of your separate property
                                                                                        (1/2 of your separate property if you have only one living descendant);
                                                                                        remainder to your descendants

Spouse and parents, no descendants                            Spouse inherits all of your community property and 1/2 of your separate property; remainder to your parents

If the result does not work for you, give us a call at 707-670-1000 or 530-456-7123.  We can help you get your affairs in order to achieve the result that you desire.

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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