Intestate Succession California: Who Inherits When There's No Will?

When someone dies without a valid will in California, state law determines who inherits through a process called intestate succession. California Probate Code Sections 6400-6455 create a rigid formula based on family relationships at the time of death.

As a Glendale probate attorney who regularly handles intestate estates, I've seen how California's intestate succession laws surprise families—spouses don't always inherit everything, children from prior marriages complicate distributions, and unmarried partners inherit nothing.

This comprehensive guide explains exactly who inherits under California intestate succession, the priority order of heirs, how community property affects distributions, special rules for different family situations, and why these default rules probably don't match what most people actually want.

What Is Intestate Succession?

Intestate succession is the legal process that determines who inherits property when someone dies without a valid will.

"Intestate" means dying without a will.

"Testate" means dying with a valid will.

When Intestate Succession Applies

California's intestate succession laws apply when:

1. No will exists at death
2. Will is invalid due to:
   • Improper execution (missing signatures, witnesses)
   • Lack of testamentary capacity
   • Undue influence or fraud
   • Successful will contest
3. Will doesn't dispose of all property (partial intestacy)

What Intestate Succession Controls

Intestate succession determines distribution of:

• Real estate in deceased's name
• Bank accounts without beneficiary designations
• Investment accounts without TOD designations
• Personal property
• Business interests
• Any assets not passing by other means

What Intestate Succession Does NOT Control

These assets pass outside intestate succession:

• Joint tenancy property → Passes to surviving joint tenant
• Life insurance → Passes to named beneficiary
• Retirement accounts → Passes to designated beneficiary
• Trust assets → Passes per trust terms
• POD/TOD accounts → Passes to named beneficiaries
• Community property with right of survivorship → Passes to surviving spouse

California's Intestate Succession Priority Order

California law creates a strict priority system for determining heirs.

California Probate Code Section 6400: "Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in this part."

Priority Hierarchy (Simplified)

1. Surviving spouse or domestic partner
2. Children (and descendants of deceased children)
3. Parents
4. Siblings (and descendants of deceased siblings)
5. Grandparents and their descendants
6. Great-grandparents and their descendants
7. Predeceased spouse's next of kin
8. State of California (escheat)

Important: Lower-priority heirs only inherit if no higher-priority heirs exist.

Community Property vs. Separate Property

Before determining who inherits, you must classify property as community or separate.

Community Property

California Family Code Section 760: Property acquired during marriage by either spouse is presumed to be community property.

Includes:

• Wages and salaries earned during marriage
• Real estate purchased during marriage
• Bank accounts funded during marriage
• Investments acquired during marriage
• Retirement benefits earned during marriage

Each spouse owns: 50% of all community property

At death:

• Surviving spouse automatically keeps their 50%
• Deceased spouse's 50% passes per intestate succession

Separate Property

Includes:

• Property owned before marriage
• Gifts and inheritances (even during marriage)
• Property acquired after legal separation
• Property purchased with separate funds
• Rents and income from separate property

At death: 100% of separate property passes per intestate succession

Why This Matters

Example: $1 million house purchased during marriage.

• Community property: $500K is already surviving spouse's, only $500K passes through intestate succession
• Separate property: Full $1 million passes through intestate succession

This distinction dramatically affects distributions.

Spousal Share Under Intestate Succession

Scenario 1: Spouse Only (No Children, No Parents, No Siblings)

California Probate Code Section 6401(a)

Spouse inherits: 100% of everything (both community and separate property)

Example: Married couple, no children. Decedent owns:

• $500K community property (house)
• $200K separate property (inheritance)

Distribution:

• Spouse gets: $250K (own community share) + $250K (deceased's community share) + $200K (deceased's separate) = $700K total

Scenario 2: Spouse + Children (All from Current Relationship)

California Probate Code Section 6401(c)(1)

Community property: 100% to spouse Separate property: 100% to spouse (if one child) OR 50% to spouse, 50% to children (if multiple children)

Example with one child:

• Spouse inherits 100% of everything

Example with two children:

• Community property: 100% to spouse
• Separate property: 50% to spouse, 25% to each child

Scenario 3: Spouse + Children from Prior Relationship

California Probate Code Section 6401(c)(2)

Community property: 100% to spouse Separate property: 50% to spouse, 50% to ALL children

Example: Decedent has two children from first marriage. Remarried with $1M community property home, $400K separate property.

Distribution:

• Community property ($1M): Spouse gets $500K (own share) + $500K (deceased's share) = $1M total
• Separate property ($400K): Spouse gets $200K, each child gets $100K

Problem: Spouse and children from first marriage now co-own house pro rata.

Scenario 4: Spouse + Parents (No Children)

California Probate Code Section 6401(b)

Community property: 100% to spouse Separate property: 50% to spouse, 50% to parents

Scenario 5: Spouse + Siblings (No Children, No Parents)

California Probate Code Section 6401(c)

Community property: 100% to spouse Separate property: 50% to spouse, 50% to siblings

Distribution When No Surviving Spouse

When there's no surviving spouse or domestic partner, distribution follows this order:

Level 1: Children

California Probate Code Section 6402(a)

All children inherit equally.

If child predeceased: Their children (decedent's grandchildren) inherit by right of representation.

Example: Three children: Anna, Ben, Carlos. Carlos predeceased, leaving two children.

• Anna: 1/3
• Ben: 1/3
• Carlos's two children: 1/6 each (splitting Carlos's 1/3)

Level 2: Parents

California Probate Code Section 6402(b)

If no children: Parents inherit 100%, divided equally if both alive.

Example: Unmarried decedent, no children, both parents alive.

• Mother: 50%
• Father: 50%

Level 3: Siblings

California Probate Code Section 6402(c)

If no children or parents: Siblings inherit equally.

If sibling predeceased: That sibling's children (nieces/nephews) inherit by representation.

Level 4: Grandparents and Descendants

California Probate Code Section 6402(d)

If no closer relatives: Estate divided:

• 50% to paternal grandparents (or their descendants)
• 50% to maternal grandparents (or their descendants)

Can include: Aunts, uncles, first cousins

Level 5: Next of Kin

California Probate Code Section 6402(e)

If none of above exist, estate passes to "next of kin" determined by relationship degree.

Level 6: Predeceased Spouse's Relatives

California Probate Code Section 6402.5

In limited circumstances, property can pass to deceased spouse's relatives if:

• Property was community property or received from predeceased spouse
• No other heirs exist

Level 7: State of California

California Probate Code Section 6800

If absolutely no relatives exist, property "escheats" to California.

Rare: Happens in fewer than 1% of estates.

Right of Representation (Per Stirpes)

California Probate Code Section 240

When an heir dies before the decedent, that heir's descendants take their place.

How It Works

Example: John dies with three children: Alice, Bob, Carol. Bob predeceased John, leaving two children (John's grandchildren).

Distribution:

• Alice: 1/3
• Carol: 1/3
• Bob's two children: 1/6 each (they split Bob's 1/3 share)

Key point: Bob's children don't inherit directly—they inherit by representation of Bob.

Multiple Generations

If Bob's children also predeceased, Bob's grandchildren would inherit Bob's share, divided among them.

Special Intestate Succession Rules

Half-Siblings

California Probate Code Section 6406

Half-siblings inherit equally with full siblings.

Example: Two full siblings, one half-sibling → each inherits 1/3.

Adopted Children

California Probate Code Section 6450-6451

• Adopted children inherit from adoptive parents same as biological children
• Generally do NOT inherit from biological parents
• Exception: Stepparent adoption maintains rights from birth parent

Children Born Out of Wedlock

California Probate Code Section 6453

From mother: Automatic relationship

From father: Relationship established by:

• Marriage to mother
• Court order of paternity
• Father's acknowledgment
• DNA evidence after death

Posthumous Children

California Probate Code Section 6407

Children conceived before death but born after death inherit as if born during parent's lifetime.

Domestic Partners

California Family Code Section 297.5

Registered domestic partners have identical rights to married spouses.

Requirements:

• Must be registered with California Secretary of State
• Informal partnerships don't qualify

Stepchildren

Generally do NOT inherit unless:

• Legally adopted, OR
• Very limited circumstances under Probate Code Section 6454 (relationship began during minority and continued throughout lives)

Relatives of the Half-Blood

Inherit equally with whole-blood relatives.

Posthumous Relatives

Heirs conceived before but born after decedent's death inherit.

Who CANNOT Inherit Under Intestate Succession

Excluded parties:

1. Unmarried partners (not registered)
2. Stepchildren (unless adopted)
3. Foster children (unless adopted)
4. Friends
5. Caregivers
6. Charities
7. Former spouses (after divorce finalized)
8. Pets (cannot legally inherit)

Exception: Registered domestic partners have full rights.

How Intestate Succession Works: The Process

Step 1: Someone Opens Probate

Interested party files Petition for Letters of Administration in probate court.

Step 2: Court Appoints Administrator

Priority for appointment (Probate Code §8461):

1. Surviving spouse/partner
2. Children
3. Grandchildren
4. Other heirs
5. Public administrator
6. Creditors
7. Any other person

Step 3: Administrator Identifies Heirs

Administrator must:

• Determine all legal heirs
• Prove relationships
• Locate heirs
• Provide notice to heirs

Step 4: Notice to Heirs

California Probate Code Section 1220

All heirs must receive notice of probate proceeding.

Step 5: Creditor Claims Period

Minimum 4 months for creditors to file claims.

Step 6: Administrator Manages Estate

• Gather assets
• Pay debts
• File taxes
• Manage property

Step 7: Final Distribution

After minimum waiting periods and all obligations satisfied:

• Court approves final accounting
• Assets distributed per intestate succession
• Probate closes

Timeline: 12-24 months typically

Costs: $20,000-$100,000+ depending on estate value

Problems Created by Intestate Succession

Problem #1: Wrong People May Inherit

Estranged relatives: Still inherit regardless of relationship quality

Unmarried partners: Inherit nothing, even after decades together

Stepchildren: Excluded even if raised as own children

Charities: Cannot inherit (no provision for charitable giving)

Problem #2: No Control Over Timing

Children inherit at age 18 with no restrictions.

Most 18-year-olds lack maturity to manage substantial inheritances.

No ability to:

• Delay distribution until older age
• Create gradual distributions
• Impose conditions
• Protect from creditors or divorces

Problem #3: Increased Family Conflict

Without written instructions:

• Disputes over who should be administrator
• Arguments over asset values
• Conflicts about selling property
• Questions about decedent's wishes

Problem #4: Co-Ownership Problems

Intestate succession often creates multiple co-owners of property (especially homes).

Issues:

• All co-owners must agree on decisions
• Selling requires unanimous consent
• One heir can force partition sale
• Management disputes

Problem #5: No Guardian Nomination

Critical for parents with minor children

Without will, court decides who raises your children.

Problem #6: No Asset Protection

No protection for:

• Beneficiaries with substance abuse issues
• Financially irresponsible heirs
• Beneficiaries in bad marriages
• Minor children (court-supervised guardianship required)

Problem #7: No Tax Planning

Large estates may pay unnecessary taxes.

Problem #8: Higher Costs

• Bond required: Intestate estates typically require administrator to post bond
• Additional attorney time: Determining heirs and shares takes more work
• Family disputes: Conflict resolution adds costs

Problem #9: Probate Cannot Be Avoided

With living trust, assets avoid probate.

Without planning, full probate required (12-24 months, $20K-$100K+).

Intestate Succession vs. Having a Will

Factor	Intestate Succession	With Valid Will
Who inherits	State law decides	You decide
Distribution	Fixed formula	Custom allocations
Timing	Immediate (after probate)	Can delay/condition
Guardian for kids	Court decides	You nominate
Executor/Administrator	Court appoints by priority	You choose
Bond requirement	Usually required	Can be waived
Probate costs	Same statutory fees	Same statutory fees
Probate timeline	12-24 months	12-18 months
Flexibility	None	Complete
Unmarried partners	Inherit nothing	Can inherit
Stepchildren	Inherit nothing	Can inherit
Charities	Cannot inherit	Can inherit
Disinheritance	Not possible	Fully possible

Bottom line: Wills provide far more control, even though both go through probate.

Frequently Asked Questions

Does surviving spouse automatically inherit everything?

No. It depends on whether you have children from other relationships and whether property is community or separate. See scenarios above.

Can unmarried partners inherit through intestate succession?

Only if registered as domestic partners with California Secretary of State. Informal partnerships don't qualify.

What if I want to disinherit someone?

You cannot disinherit via intestate succession. The only way is to create a will that specifically provides otherwise.

Do stepchildren inherit from stepparents?

Generally no, unless legally adopted or very limited circumstances under Probate Code Section 6454.

What happens if no relatives can be found?

After extensive search, property escheats to State of California. This is extremely rare.

Can creditors still collect debts?

Yes. Creditors have priority over heirs. Debts must be paid before distribution to heirs.

How long does intestate probate take?

Same as regular probate: 12-24 months typically.

Is intestate probate more expensive?

Statutory fees are same, but additional costs include bond premiums and extra attorney time to determine heirs.

What if someone contests their share?

They can petition court claiming they should inherit more. Court determines rights under intestate succession law.

Can heirs agree to different distribution?

Yes, if all heirs agree in writing, they can redistribute differently than intestate succession requires.

Related Articles

Learn more about California intestate succession:

• Died Without Will California - Complete guide to the intestate probate process from start to finish.

• California Inheritance Laws Without Will - Detailed scenarios for every family situation under intestate succession.

• How to File Probate in Los Angeles County - Filing intestate probate administration.

• California Executor Duties & Responsibilities - What administrators do in intestate estates.

• How to Avoid Probate in California - Create estate plan to avoid intestacy problems entirely.

Get Help with Intestate Succession

Whether you're dealing with an intestate estate or want to create a plan to avoid intestate succession for your own family, experienced legal guidance is essential.

Call (818) 291-6217 to schedule a consultation at my Glendale office, or complete our probate questionnaire for intestate cases, or our estate planning questionnaire to create your plan.

As a California probate and estate planning attorney serving Los Angeles County, I help families navigate complex intestate succession cases and create comprehensive estate plans that ensure your wishes—not state default rules—control your legacy.

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About the Author

Rozsa Gyene (State Bar No. 208356) is a California estate planning and probate attorney serving Glendale, Burbank, Pasadena, and throughout Los Angeles County. With extensive experience in both intestate probate administration and estate planning to avoid intestacy, Rozsa helps clients understand California's complex intestate succession laws and create plans that actually protect their families.

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Disclaimer: This article provides general information about California intestate succession laws and should not be construed as legal advice. Every situation is unique. California laws change regularly, and this article reflects laws in effect as of January 2025. Consult with a qualified California probate attorney about your specific circumstances.