Personal Injury, Probate, Employment, & Complex Litigation


What Happens To Community Property Assets If The Spouse Dies Without A Will?

California is a community property state. What does that mean? Well, it means what is yours is also your spouse’s and what is your spouse’s is also yours. This concept is most commonly associated with family law and how to split marital assets between the two spouses, but it also frequently pops up in estate matters.

It pops up in estate matters when one spouse dies and either leaves their community property interest to someone not their spouse, or don’t leave a testamentary document to devise their community property interest. However, depending on how long the couple had been married, there is generally separate property interests as well. For example, a young couple marries at 25 and buys a house at 30. One of the spouse then dies at age 31.

In most circumstances that house will be considered community property at the time of death. However, because of the ages, it wouldn’t be uncommon if the deceased spouse owned a car at the time of their marriage that they kept until their death. Because that property was acquired by an individual prior to the marriage, it is likely considered separate property.

Like I said, this designation can matter in two different ways for estate dispute issues. If the decedent left all their separate property and portion of community property to someone other than their spouse then community property vs. separate property designation matters as the surviving spouse will either be able to keep half of the property, or none of the property.

If the decedent died without a testamentary instrument, then this distinction matters because community property intestate succession is different than separate property intestate succession.

According to Probate Code section 6401, if the decedent died leaving a spouse and one child, the split of the separate property and community property is the same: 50% to the surviving spouse, 50% to the child. However, if the decedent died leaving a spouse and two children, the separate property is divided: 33% to the surviving spouse and 33% to each surviving child (note: the more kids the more the 66% to the children gets divided amongst themselves, but the spouse always retains the 33% share). However, under that same scenario, the decedent’s community property share goes entirely to the surviving spouse.

So, to bring this post full circle, let’s go back to the young married couple scenario. Let’s assume that they had two children in the intervening years between their marriage and the decedent’s death. The separate property car would be split a third to each, the surviving spouse and the two children. However, the house would go entirely to the surviving spouse.