Deceased Spouse Leaves No Valid Will (Intestacy)

What is the Widow(er)’s Share of the Estate of a Deceased Spouse Who Left No Valid Will?  
 
In California, to answer this question, the community-property and separate-property estates of the deceased spouse must be distinguished.  Except as otherwise provided by statute, community property, is all property including personal property and real estate, wherever located (including outside of California), acquired by a married person during the marriage while domiciled in California.  (If property is acquired by a married person while domiciled outside of California, such property is characterized as quasi-community property and treated like community property for the purpose of answering this question.)  What’s more, there is a rebuttable presumption that all property acquired by a married person is community property until it is proven that such property is not community property.                                                                                                                                                                                                                                 
A statute that removes property acquired during the marriage from being characterized as community property is Family Code section 770(a), which defines separate property as: (1) all property owned by the person before the marriage; (2) all property acquired by the person during marriage by gift bequest (i.e., personal property through a valid will), devise (i.e., real estate through a valid will), or descent (through the state laws of succession where no valid will exists); (3) the rents, issues, and profits from the married person’s separate property.                                                                                                               
                                                                                                                                Generally, when a married person dies, one-half of the community property estate belongs to the deceased spouse and the other half belongs to the surviving spouse.  (Probate Code section 100(a).)  When a deceased spouse left no valid will, the widow(er) is entitled to all of her (or his) deceased spouse’s one-half share of the community-property estate.  (Probate Code section 6401(a) and (b).)
                                                                                                                                Under Probate Code section 6401(c), however, the widow(er)’s fractional share of her (or his) deceased spouse’s separate-property estate when the deceased spouse left no will depends on the number of heirs of the deceased spouse:
  • The entire separate-property estate where the deceased spouse 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 deceased spouse 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 deceased spouse 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 the Spouse Does Not Survive a Decedent That Left No Valid Will?

If there is no surviving spouse of a decedent and the decedent did not leave a valid 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 descendants 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.  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.”

What if the Deceased Spouse Left a Valid Will (Testacy)?

If a deceased spouse did leave a valid will, then the deceased spouse’s one-half share of the community-property estate is distributed according to the will.