The best way to ensure that your property goes where you want it is to create an estate plan and use a will, lifetime gifts, and trust documents to give your property to your intended heirs. If not, then each state, including California, has its own intestate (without a will) succession rules to determine who gets what after you die.
Not all property passes through intestate succession. Suppose there is a named beneficiary or legal relationship dictating who gets the property on your death. In that case, it is not included in your estate.
Who inherits what depends on which relatives survive you after death.
Regarding Intestate Succession in California:
| If you have: | Here’s what happens: |
|---|---|
| A spouse but no children or parents | the spouse gets everything |
| Children but no spouse | the children get everything (in equal shares) |
| Parents, but no children, spouse, or parents | the parents get everything |
| Siblings but no children, spouse, or parents | the siblings get everything (in equal shares) |
| A spouse and a child or grandchild | the spouse gets all of the community property and half of the separate property and the child or grandchild gets the other half of the separate property |
| A spouse and two or more children | the spouse gets all of the community property and 1/3 of the separate property, while the children get 2/3 of the separate property. If there are grandchildren from a deceased child, the grandchildren will get their parent’s share |
| A spouse and parents | the spouse gets all community property and ½ of separate property |
| A spouse and siblings | the spouse gets all community property and ½ of the separate property |
One significant exception to the intestate succession rules is legal separations. Suppose spouses are separated, but not divorced, at the time of death. In that case, the spouse will not inherit the deceased’s half of the community property or their share of separate property.
As the intestate rules make clear, how a person owns property determines how it passes after death. Both spouses own any community property, and it goes to the surviving spouse after death. Any property acquired during the marriage is presumed to be community property. However, gifts and inheritances are separate property. Plus, the couple can designate the property as a separate property.
It is vital to realize that the state looks at legal definitions of children. Children include all biological children unless you give them up for adoption. It includes children born to a wife during a marriage, regardless of whether the child is biologically related to the deceased unless there is a court order about paternity. It also includes adopted children. However, anyone wanting to include foster children or stepchildren needs to make provisions with an estate plan.
Likewise, intestate succession rules in California consider half-siblings (those who share only one parent) the same as full-siblings. They will inherit like full siblings. However, foster siblings or stepsiblings will not inherit unless you have an estate plan naming them as beneficiaries.
There are some other important rules. First, if someone dies without survivors, their property will go to the state. If you do not have relatives but do not want the state to get your estate, then you can make plans to leave your estate to friends, loved ones, or a charity.
Next, the slayer statute prevents anyone who murders you from getting access to your property, even through intestate succession.
Finally, lifetime gifts do not count towards the intestate share unless there was something in writing explaining that was the intention at the time of the death.
Want to avoid the potential complications of intestate distribution? Consult with an estate planning specialist to create a will or a trust instead.