Who Inherits Property if You Die Without a Will

My question involves estate proceedings in the state of: CA

I thought when a person with a spouse and children, who owns assets and properties dies, the property automatically goes to the surviving spouse. My friend told me that she heard that the surviving spouse does NOT automatically get all assets. She said she heard that the father's assets and properties gets split evenly among the wife and the children. Is that true? So if there are two kids and a wife, everyone automatically gets 1/3 split of the assets and the properties.

Your friend is right. Absent a will and with a surviving spouse and multiple children, the spouse gets a third, the children get equal shares. This doesn't count things owned jointly with right of survivorship or by the entirety which automatically just go to the surviving joint owner.

This is why you need a will if you want the spouse to get everything.

Is this true regardless of the state? I wonder where this is stated online?

Quote:

---

Quoting jyeh74

---

Is this true regardless of the state? I wonder where this is stated online?

---

The laws of intestacy are pretty common from state to state but have some differences. State statutes can be looked up online.

There are likely to be big issues in Community Property states like CA and AZ, etc where spouses own just about everything as community property and, under certain circumstances, all of it can go to the spouse.

Separate Property
For the deceased's separate property, the surviving spouse will receive:

All of the separate property if there are no other heirs or children
One half the separate property if there is one child or issue with heirs
One third of the property if there is more than one child

Community Property
In a community property state like California, the deceased's share of the community property will transfer to the surviving spouse.

So in a community property, the children do not receive anything?

Quote:

---

Quoting adjusterjack

---

There are likely to be big issues in Community Property states like CA and AZ, etc where spouses own just about everything as community property and, under certain circumstances, all of it can go to the spouse.

---

That's not true for either state really. The rules I provided were for California. The spouse does not get all the community property when there are children. The spouse gets half or a third depending on how many children there were.

Arizona is different. If the children are the children of the surviving spouse, the spouse gets it all. If the children are children of the deceased, but not of the surviving spouse, then both the separate property of the deceased and the community property get split 50-50.

Quote:

---

Quoting flyingron

---

That's not true for either state really. The rules I provided were for California. The spouse does not get all the community property when there are children. The spouse gets half or a third depending on how many children there were.


Arizona is different. If the children are the children of the surviving spouse, the spouse gets it all. If the children are children of the deceased, but not of the surviving spouse, then both the separate property of the deceased and the community property get split 50-50.

---

It says according to the the link for CA,

"In a community property state like California, the deceased's share of the community property will transfer to the surviving spouse."

It does not mention anything about kids getting it. Kids in CA receive the property only when it is separate property not community property.

I am going to try to break this down a little bit better.

In a community property state:

Separate property = property acquired before the marriage, or received as a gift during the marriage or received as an inheritance during the marriage.

Community property = All property accrued during the marriage (other than gifts or inheritances) whether its in both names or not.

There is also property that passes outside of the estate. Insurance proceeds pass to the beneficiaries, retirement accounts pass to the beneficiaries, A home owned as joint tenants with rights of survivorship or joint tenants in the entirety, will go to the remaining joint owner. Joint bank accounts or other types of accounts will also go to the joint account holder. In many situations, a married couple owns absolutely all of their assets jointly, and that is why often the remaining spouse ends up with everything, because everything passes outside of probate.

However, anything that goes into the estate and goes through probate gets divided as indicated by the previous posters.

Quote:

---

Quoting jyeh74

---

It says according to the the link for CA,

"In a community property state like California, the deceased's share of the community property will transfer to the surviving spouse."

It does not mention anything about kids getting it. Kids in CA receive the property only when it is separate property not community property.

---

I don't know what "link" you're reading, but you're wrong. Here's the probate code:

6400. Any part of the estate of a decedent not effectively disposed
of by will passes to the decedent's heirs as prescribed in this
part.


6401. (a) As to community property, the intestate share of the
surviving spouse is the one-half of the community property that
belongs to the decedent under Section 100.
(b) As to quasi-community property, the intestate share of the
surviving spouse is the one-half of the quasi-community property that
belongs to the decedent under Section 101.
(c) As to separate property, the intestate share of the surviving
spouse is as follows:
(1) The entire intestate estate if the decedent did not leave any
surviving issue, parent, brother, sister, or issue of a deceased
brother or sister.
(2) One-half of the intestate estate in the following cases:
(A) Where the decedent leaves only one child or the issue of one
deceased child.
(B) Where the decedent leaves no issue, but leaves a parent or
parents or their issue or the issue of either of them.
(3) One-third of the intestate estate in the following cases:
(A) Where the decedent leaves more than one child.
(B) Where the decedent leaves one child and the issue of one or
more deceased children.
(C) Where the decedent leaves issue of two or more deceased
children.

Section 100 says:

100. (a) Upon the death of a married person, one-half of the
community property belongs to the surviving spouse and the other half
belongs to the decedent.

So it is clearly not the case the spouse gets all the community property. Half of the community property belongs to the surviving spouse (their share), the ohter half is assigned to the deceased as his share. From that, the spouse gets 1/2 or a 1/3 of the decedent's share of the community property when there are descendents (depending if there's only one or not).

California: all community property goes to the spouse. Seperate property; it depends on whether there are living children, parents, or
siblings. If there are living children, parents, or siblings, the decedents seperate property is divided between the spouse and one or more
of divisions.