Deceased Spouse Leaves No Valid Will (Intestacy)

What’s a Widow(er)’s Share of the Estate of a Deceased Spouse Who Leaves No 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.)
A statutory rebuttable presumption exists that all property acquired by a married person is community property until it is proven that such property is not community property.  Such a statute, rebutting this community property presumption, i.e., preventing property acquired during the marriage from being characterized as community property, is in Family Code section 770(a), which defines separate property as:
a)   All property owned by the person before the marriage; 
b)  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); and,
c)   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 leaves no 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).) 
Probate Code section 6401(c), however, states that the widow(er)’s fractional share of his or her deceased spouse’s separate-property estate when the deceased spouse leaves no will depends on the number of heirs of the deceased spouse.  The surviving spouse receives:
a)  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;

b)  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; or,

c)  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.

The definitions of a parent and a 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 was no marriage or 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 (meaning the decedent’s siblings and their lineal descendants) or either of them (meaning the decedent’s half-siblings and their lineal descendants), 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: “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 Leaves a Will (Testacy)?

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