California Intestacy Laws
States govern the distribution of a decedent’s property pursuant to their probate laws, which vary from state to state. In California, if a decedent dies without a will, he is subject to the California intestacy and succession laws. If a decedent dies with a will, California probate laws require that the executor or administrator divide property according to the decedent’s testamentary intent.
For an unmarried decedent who dies without a will, the California intestacy laws require a distribution of property to the decedent’s children, in equal shares. If the decedent’s children are no longer living, next in line are the grandchildren, in equal shares. If there are no children, grandchildren, great-grandchildren or surviving issue, the decedent’s property passes to his parents. For married decedents, California law gives preference to surviving registered domestic partners or spouses of decedents; they are the first in line to inherit property. If there are surviving descendants or parents of the decedent, the state inheritance and succession laws require division according to marital and non-marital property. Since California is a community property jurisdiction, a surviving spouse’s right to her husband’s property is dependent on the classification of the property. For marital or community property, she has a right to the entire communal estate, as long as the community property was earned or purchased during their marriage.
Separate property or property purchased before marriage is subject to the California succession rules. Under California law, a surviving spouse has a right to all of the decedent’s separate property if he has no surviving children, issue, parents, siblings or nieces and nephews. If the decedent has one child, the child and the surviving spouse share any separate assets. If his parents or siblings survive the decedent, California law awards the surviving spouse 50 percent of the separate property, while his parents or siblings receive the other half.
Although the California probate laws give preference to surviving spouses or registered domestic partners, in cases of divorce or subsequent marriages the California Probate Code prohibits the intestate succession of property to unrelated children of domestic partners or spouses. For example, if a surviving spouse and the decedent had no children, but the surviving spouse has surviving issue from another marriage, California law limits the succession of property to her issue. (See Probate Code Sec. 102.5)
Under California law, surviving issue and spouses must outlive the decedent by at least 120 hours to receive property under the succession rules. The law deems that the decedent’s issue, heirs, or spouses have outlived him, even if they do not satisfy the 120-hour survival rule, when the property would otherwise escheat to, which means revert to, the state. Under California law, property escheats to the state if decedents die without any heirs or surviving spouses. Under California law, heirs are automatically disqualified from receiving a decedent’s property if the decedent was elderly, or was mentally or physically incapacitated, and there is proof they had abused or neglected the decedent, or engaged in financial fiduciary abuse. Similarly, an individual guilty of murdering the decedent is prohibited from receiving the decedent’s property.