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Navigating intestacy for surviving spouses in California

When someone dies without a valid will, his or her condition is called "intestacy." Each state has its own laws for determining how the deceased’s estate is divided in cases of intestacy.

When the deceased’s spouse is still living, all community property (meaning property acquired during the marriage) automatically goes to the spouse, while separate property (meaning property acquired before the marriage or gifts and inheritance gifted to only one spouse) is split differently depending on the relationship the deceased shares with other living relatives. 

If the deceased had more than one child with the living spouse, then the spouse will receive one-third of the deceased’s separate property, with the other two-thirds being divided equally among the children.

If the couple only has one surviving child or no children, then the spouse receives one-half of all separately owned property. The remaining half is then either given to the child, or, if there is no child, divided among the deceased’s parents, or the deceased’s siblings if the parents are no longer living.

Legally separated partners do not have any claim to property under California intestate succession laws.

Not all assets fall under this realm of intestate succession laws. Property transferred to a living trust, an IRA, a 401(k), payable-on-death bank accounts, life insurance proceeds and property owned jointly with someone who is not a spouse are all assets which will go to the beneficiary named on their legal paperwork.

Intestacy laws can become quite complicated to navigate, so legal and financial advisors strongly encourage all individuals to create a living will with an attorney as soon as they are able. Living wills enable an individual to transfer property to desired beneficiaries regardless of state intestate succession laws.