Who Inherits If You Die Without a Will in California?
If someone dies in California without a will, the state does not take the property and nobody guesses at their wishes. A statute decides, and it may divide an estate in a way the family never expected. Answer three questions below to see the result.
Written by Trust Law Legacy Group, APC — Estate Planning, Trust & Probate Law Firm in San Jose, California. Reviewed by Gerald Smith, Esq., Litigation Attorney. Updated August 2026.
Quick Answer: A surviving spouse takes all of the community property. The separate property is divided: one half to the spouse if there is one child, or no children but a surviving parent or sibling; one third if there are two or more children; and the entire estate only if no issue, parent, sibling or child of a sibling survives. With no spouse, everything passes down the ladder in Probate Code section 6402.
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How California decides without a will
Probate Code section 6401 sets the surviving spouse’s share, and section 6402 sets the order for everything that does not pass to the spouse. Together they are the default estate plan California writes for anyone who does not write their own.
The spouse’s share is not automatic
This is where families are most often caught out. A surviving spouse inherits all of the community property, which is why many people assume the spouse simply receives everything. Separate property follows a different rule. Property owned before the marriage, or received during it by gift or inheritance, can be split with children, parents or even siblings while the spouse is still living in the home.
Find out which of your assets are separate property.
If there is no surviving spouse
With no surviving spouse, section 6402 works strictly down a ladder. Each level inherits only if no one on the level above survives.
- Children, and the children of a deceased child
- Parents, equally
- Siblings, and the children of deceased siblings
- Grandparents, or their descendants
- The children of a predeceased spouse
- Next of kin, with nearer ancestors preferred over remote ones
What these rules cannot see
The statute recognises marriage, registered domestic partnership, blood and legal adoption. It does not recognise a partner of thirty years who was never married, a stepchild who was never adopted, a close friend, or a charity. It also cannot account for a family business, a child with a disability whose benefits an inheritance would disqualify, or a property the family intended to keep together.
Intestate succession also does nothing to avoid probate. The estate still passes through the court and still pays the statutory fee schedule, which you can work out with the California probate fee calculator.
Replace the state’s default plan with your own.
Frequently asked questions
Who inherits if you die without a will in California?
California’s intestate succession rules decide. A surviving spouse or registered domestic partner takes all of the community property. The decedent’s separate property is split between the spouse and the closest surviving relatives: one half if there is one child or no children but a surviving parent or sibling, one third if there are two or more children, and the whole estate if no issue, parent, sibling or child of a sibling survives.
Does the state take the property if there is no will?
Almost never. Probate Code section 6402 works through issue, parents, siblings and their children, grandparents and their descendants, the children of a predeceased spouse, and finally next of kin. Property escheats to the state only when no relative in that entire ladder can be found.
Does a will avoid probate?
No. A will directs who inherits, but the estate still goes through the probate court and the statutory fee schedule still applies. Avoiding probate is a separate question from avoiding intestacy.
What overrides intestate succession?
A valid will, a funded living trust, a beneficiary designation on a retirement account or life insurance policy, and joint title with right of survivorship all pass property outside these rules. Intestate succession applies only to what is left.
Do stepchildren or unmarried partners inherit?
Not under these rules. Intestate succession follows marriage, registered domestic partnership, blood and legal adoption. An unmarried partner or a stepchild who was never legally adopted takes nothing, however long the relationship lasted. This is the single most common surprise in an intestate estate.
This page summarises California Probate Code sections 6401 and 6402 for general information. It is not legal advice and does not create an attorney client relationship. It does not cover adopted or foster children under section 6454, property of a predeceased spouse under section 6402.5, or the many circumstances that change the result. Statutory text verified against the California Legislative Information site in September 2026.
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