California Probate Law & Next in Line Inheritance

by Beverly Bird

If you die intestate in California – without leaving a will – probate law meets community property law. The state steps in to distribute your property according to a prescribed line of inheritance that depends on whether you're married and what type of property you hold. You can avoid this problem to some extent by leaving a will, but California's community property laws restrict your bequests somewhat.

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Probate Estate

Only assets that are subject to probate pass to heirs according to California's rules for intestate succession – the order in which relatives stand in line to inherit. Probate law doesn't apply to assets that pass directly to a beneficiary by contract. Therefore, if you own real estate held with someone else as joint tenants with rights of survivorship, or a life insurance policy for which you've named a beneficiary, these assets will pass directly to that person. California's probate laws won't become involved, and you wouldn't have to include them in your will if you decided to write one.

Community Property Law

California divides probate estates into two separate categories in accordance with community property law. If you're married, the law provides that everything you acquire or earn after the date your marriage belongs to both you and your spouse – you each have a 50 percent interest. Therefore, even if you leave a will, you can't bequeath 100 percent of your marital assets. Your spouse owns half, and you can't give her share to anyone else. If you write a will, you can bequeath your 50 percent share to anyone you like, but if you don't, your portion of community property reverts automatically to your spouse. She would inherit 100 percent ownership of all community assets.

Separate Property

The line of inheritance becomes more complicated if you also own separate, non-marital property and you die intestate. For example, you might have owned a property before you got married; this would typically be yours alone and you can pass it to whomever you like if you write a will. Inheritances you receive during your lifetime or gifts made specifically to you are also your separate property. If you have no children, if your parents aren't living, and if you have no siblings, nieces or nephews, all your separate property goes to your spouse as well, in addition to the entire community property estate. Your nieces and nephews would only inherit if their parents were deceased.

Children and Other Relatives

If any children or other relatives survive you, your spouse would receive only a portion of your separate property under California's laws for intestate estates. The equation becomes somewhat complex depending on how many children you have and what other relatives survive you. If you leave only one child, or if you have grandchildren and that child is deceased, California divides your separate property equally between your spouse and your child or grandchildren. If you don't leave a child, your spouse would share your separate property 50-50 with your parent or parents, or with your siblings if your parents are deceased. If you have more than one child, your spouse receives only one-third of your separate property and they share the remaining two-thirds. Grandchildren born to deceased parents inherit their parents' shares. If you're not married, the equation is much simpler. Your separate estate passes to your children, and if you have no children, either, it goes to your parents, then to your siblings if your parents aren't living.

Domestic Partners

California recognizes domestic partnerships. Provided a couple has registered with the Secretary of State, a surviving domestic partner stands in line to inherit the same as a spouse.