Deceased Spouse Leaves No Will

What is the Widow(er)’s Share of the Estate of a Deceased Spouse Who Left No Will?
 
Generally, a widow(er) is entitled to all of his or her deceased spouse’s one-half share of the community and quasi-community property, under Probate Code section 6401(a) and (b).  Under Probate Code section 6401(c), the widow(er)’s share of his or her deceased spouse’s separate property depends on the number of heirs of the deceased spouse:
  • The entire separate-property estate where the decedent did not leave any children, a parent, a brother or sister, or any children of a deceased brother or sister.
  • One-half of the separate-property estate where the decedent leaves:  only one child or children of a deceased only child; or, no child(ren) but leaves a parent or parents, or a full or half sibling.
  • One-third of the separate-property estate where the decedent leaves:  more than one child; one child and the child(ren) of one or more deceased children; or, the children of two or more deceased children.

What if His or Her Spouse Doesn’t Survive the Decedent Who Left No Will?

If there is no surviving spouse or surviving domestic partner of a decedent who left no will, then the decedent’s estate passes to the decedent’s surviving issue.  (Probate Code sec. 6402(a).)   “‘Issue’ of a person means all his or her lineal decedents of all generations, with the relationship of a parent and child at each generation being determined by the definitions of child and parent.”  (Probate Code sec. 50.)  

The definitions of parent and child in sections 54 and 26, respectively, “refer to entitlements to intestate succession established under the Probate Code, of which Probate Code section 6453 governs who is a natural parent.  Probate Code sec. 6453 is the “exclusive means of determining paternity” in intestate proceedings., other than fatherhood by adoption.  (See Estate of Britel (2015) .)  Hence, if no there were no marriage of domestic partnership and no court order establishing a parental relationship, the sole means of proving a parental relationship would be through Probate 6453.  

If there is no surviving issue, then the estate passes to the decedent’s parent or parents.  (Probate Code sec. 6402(b).)

If there is no surviving issue or parent, then the decedent’s estate passes to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Probate Code section 240.  (Probate Code sec. 6402(c).)

Probate Code section 240 states that “If a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue.”