Inheriting Separate Property Where there is No Will in California

Where there is no will under California Inheritance Law, there are default rules for who will inherit the estate, under intestacy or intestate succession and its application where there is a will. Here is a list of what you have to look at:

  1. You must ask if the Property is Community Property or Separate Property.
  2. Is there a prenuptial agreement or a post-nuptial agreement that changes the default inheritance rules?
  3. Is there a surviving spouse?
  4. Are there any children?

Assuming there is no agreement that changes the inheritance potential, If the assets are community property and there is a spouse, under the rules of inheritance in California, the spouse gets to inherit all of it. This means all of decedent’s 1/2 and all of the surviving spouse’s own 1/2.

California Probate Code 6401 (a)

If the assets are separate property, and there is a spouse and one child, the spouse gets one half (1/2) and the child gets one half (1/2).

But what if there are more children? Then the spouse gets 1/3 one-third, and 2/3 two-thirds is distributed among the children equally.

Here is what the California Probate Code has to say about inheriting separate property:

(c) As to separate property, the intestate share of the surviving spouse is as follows:

(1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

(2) One-half of the intestate estate in the following cases:

(A) Where the decedent leaves only one child or the issue of one deceased child.

(B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them.

(3) One-third of the intestate estate in the following cases:

(A) Where the decedent leaves more than one child.

(B) Where the decedent leaves one child and the issue of one or more deceased children.

(C) Where the decedent leaves issue of two or more deceased children.

Most estates may have a combination of community property and separate property so the assets actually get distributed according to their character.

If you are married to someone, especially in a second or third marriage, you should know your legal inheritance rights before your spouse dies. Contact us for a consultation session regarding inheritance rules in CA.

You must remember that wills, prenuptial agreements and post-nuptial agreements change everything, so you must review them very carefully.

Do you wonder if your father’s wife will get the estate or if you will be inheriting property? Need to talk to an expert in inheritance laws in California, in Glendale and Los Angeles County? Call Mina Sirkin at 818.340.4479 or email [email protected].