After the death of my husband, how will our marital property be divided in the absence of a will?

Full question:

My husband was a successful real estate agent for a quarter of a century in San Francisco. We were married for 28 years. He passed away last week due to a severe heart attack. We have two children from the marriage. All of our property is marital property. Because he was into the real estate dealings, I assumed that he would have had a will made by his attorney. On inquiry with the family attorney, I was told that my husband never made a will. How will this impact the division of his property? Do our children get a share of it?

• Category: Wills and Estates
• Subcategory: Community Property
• Date: 04/07/2025
• State: California

Answer:

In California, when a resident dies without a will or trust, they die "intestate" and the laws of intestate succession are used to determine who will inherit the estate. Also, being a community property state, the property of a person, who dies without a will, is transferred to the surviving spouse in most circumstances. However, it depends on whether the remaining property is community property or separate property.

Cal Prob Code § 6401 lays down the provisions for dividing community property and separate property. It reads:
“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.”
 
In the given circumstances, the decedent’s property, which is community property, shall be divulging on the surviving spouse completely per Cal Prob Code § 6401. The children are not entitled to get a share of the property as the decedent did not have any separate property.