Does a Surviving Spouse Inherit Everything in California?
Written by the FreeWillUSA Editorial Team · California
General information, not legal advice. Reviewed against California statutes as of July 2026.
The short answer
Not automatically. Without a will, a surviving spouse in California receives all community property — but only one-half or one-third of the deceased spouse's separate property if children, parents, or siblings survive (Prob. Code § 6401).
What's on this page
- •Why community property all goes to the spouse
- •The separate-property split: when it's 100%, 1/2, or 1/3
- •Registered domestic partners: same rights as spouses
- •How to guarantee your spouse inherits everything (a will)
Community property: yes, the spouse gets all of it
Community property is generally everything either spouse earned or acquired during the marriage — paychecks, the home you bought together, savings built from wages. Each spouse already owns half. When one spouse dies without a will, Probate Code § 6401 gives the decedent's half to the survivor, so the surviving spouse ends up owning 100% of the community property.
For many long-married couples whose wealth was all built during the marriage, this is why the survivor does end up with nearly everything. The trap is the other bucket. How assets get sorted into the two buckets is its own topic — see community property inheritance in California.
Separate property: only 1/2 or 1/3 if others survive
Separate property is what you owned before the marriage, plus gifts and inheritances you personally received at any time — a house bought before the wedding, an inheritance from a parent, a premarital brokerage account. Under § 6401, the surviving spouse shares this bucket with other relatives:
| Who else survives the decedent | Spouse's share of separate property |
|---|---|
| No children, parents, siblings, or their descendants | Spouse gets 100% of separate property |
| One child (or descendants of one deceased child) | Spouse gets 1/2 · child gets 1/2 |
| Two or more children | Spouse gets 1/3 · children split 2/3 |
| No children, but parent(s) survive | Spouse gets 1/2 · parent(s) get 1/2 |
| No children or parents, but siblings (or their kids) survive | Spouse gets 1/2 · siblings' side gets 1/2 |
A concrete example: a husband dies without a will, leaving a wife and two children. The family home bought during the marriage (community property) passes entirely to the wife. But the $300,000 rental condo he inherited from his mother (separate property) does not — the wife receives one-third, about $100,000 in value, and the children split the remaining two-thirds. If the children are minors, the court may need to get involved in managing their shares. The full chart of every survivor combination is here: who inherits in California when there's no will.
Want your spouse to get everything? Say so in a will
The splits above only apply when there's no will. A simple will leaving everything to your spouse overrides all of it. William AI can help you make a free California will — no login or payment required.
Make my free California willWhat about registered domestic partners?
California treats a surviving registered domestic partner exactly like a surviving spouse. Family Code § 297.5 grants registered domestic partners the same rights and responsibilities as spouses, and Probate Code § 6401 expressly includes the surviving domestic partner. Everything on this page — 100% of community property, the 1/2 and 1/3 separate-property splits — applies identically.
Unregistered partners get nothing. A partner you never married or registered with the state — even after decades together, even if you share a home and children — is not an heir under California intestate succession. A will or trust is the only reliable way to provide for them.
What else does the surviving spouse face without a will?
- Probate court. Separate property passing by intestacy generally goes through probate — commonly 9–18 months of court process. (A spousal property petition can simplify transfers to the spouse, but anything passing to children or other relatives stays in the slow lane.) See probate without a will in California.
- Statutory fees on the gross estate — paid to both the attorney and the administrator. Estimate them with our California probate fees calculator.
- Co-ownership with in-laws or minor children. When separate property splits, the spouse can end up owning real estate jointly with the decedent's children or parents — a recipe for forced sales and family friction.
The full picture of what happens with no will — including guardianship of minor children and why the court file is public — is in our pillar guide: what happens if you die without a will in California. And when you're ready to opt out of the formula, here's how to make a will in California.
Frequently asked questions
Does a surviving spouse automatically inherit everything in California?
No. Without a will, the surviving spouse receives all of the community property, but the deceased spouse's separate property is shared. Under Probate Code section 6401, the spouse receives only one-half of the separate property if there is one child (or surviving parents or siblings when there are no children), and only one-third if there are two or more children.
What is the difference between community and separate property for inheritance?
Community property is generally everything either spouse earned or acquired during the marriage. Separate property is what a spouse owned before the marriage, plus gifts and inheritances that spouse personally received at any time. In intestate succession the spouse takes 100% of community property but shares separate property with children, parents, or siblings.
Do registered domestic partners have the same inheritance rights as spouses in California?
Yes. Under Family Code section 297.5, registered domestic partners have the same rights as spouses, and Probate Code section 6401 expressly covers the surviving domestic partner. A surviving registered domestic partner inherits exactly as a surviving spouse would.
Does my spouse share my separate property with my children from a prior marriage?
Yes — this is one of the most common surprises. Children from any marriage or relationship count under section 6401. With one such child, your spouse receives half of your separate property; with two or more, your spouse receives only a third, and the children split the rest.
Does an unmarried long-term partner inherit anything in California?
Not under intestate succession. Unless the couple registered as domestic partners, a surviving unmarried partner receives nothing from the formula, regardless of the relationship's length. A will or trust is the only reliable way to provide for an unmarried partner.
How can I make sure my spouse actually inherits everything?
Make a will or living trust that says so. A valid will overrides the intestate formula completely, so you can leave 100% of both community and separate property to your spouse — or make any other arrangement you choose.
Protect your spouse with 15 minutes of paperwork
A valid California will lets you leave everything to your spouse — or arrange things exactly the way your family needs. Make your free will with William AI now.
Make my free California willFreeWillUSA.ai is a free self-help tool and is not a law firm. This page is general information, not legal or tax advice, and does not create an attorney-client relationship. This article addresses California; rules can change and other states differ. For a large or complex estate, or specific tax questions, consult a licensed attorney or tax professional before acting.