Who Inherits When There Is No Will
When a Californian dies without a will, Probate Code sections 6401 and 6402 decide who inherits, not the family. A surviving spouse takes all of the community property, and somewhere between one-third and all of the separate property, depending entirely on which other relatives happen to survive the decedent.
What the statute actually provides
Probate Code section 6400 sets the premise: any part of an estate not effectively disposed of by will passes to the decedent’s heirs as the statute prescribes. Section 6401 then takes the spouse first. As to community and quasi-community property, the surviving spouse’s intestate share is the one-half that belonged to the decedent — so the spouse ends up holding all of it. Separate property is where the arithmetic turns. The spouse takes the entire intestate estate only where the decedent left no surviving issue, parent, brother, sister, or issue of a deceased brother or sister. They take one-half where there is one child or the issue of one deceased child, or no issue but a surviving parent or the issue of a parent. They take one-third where the decedent left more than one child, or one child plus the issue of deceased children.
Sources: Probate Code s.6401 - Intestate share of the surviving spouse · Probate Code s.6400 - Property not disposed of by will passes to heirs · Probate Code s.6402 - Distribution of the share not passing to a spouse · Verified 2026-08-20.
The separate-property shares, at a glance
| Who survives | Spouse’s share of separate property |
|---|---|
| No issue, parent, sibling, or sibling’s issue | All of it |
| One child, or the issue of one deceased child | One-half |
| No issue, but a parent or a parent’s issue | One-half |
| More than one child | One-third |
| One child plus issue of a deceased child | One-third |
| Issue of two or more deceased children | One-third |
Where the rest goes
Whatever does not pass to a spouse moves outward through section 6402 in a fixed order: to the decedent’s issue, then to parents, then to the issue of parents, then to grandparents or their issue, then to the issue of a predeceased spouse, then to next of kin. Section 240 governs how issue of unequal degree divide a share, and section 6402.5 can redirect property that originally came from a predeceased spouse. Escheat to the state is the last resort, not the common outcome people fear — it requires that nobody at all can take.
Who counts as an heir
Two rules decide membership before any share is calculated. Section 6403 imposes a survival period: a person who fails to survive the decedent by 120 hours is deemed to have predeceased them for the purpose of intestate succession, and where it cannot be established by clear and convincing evidence that a would-be heir survived by that period, they are deemed not to have. The requirement is disapplied where applying it would send the property to the state by escheat. Section 6406 then settles a question families ask constantly: relatives of the halfblood inherit the same share they would inherit if they were of the whole blood, so a half-sibling takes exactly what a full sibling takes. The qualification is section 6451, which severs the parent-child relationship between an adopted person and a natural parent unless narrow conditions are met — that they lived together as parent and child, or the natural parents were married or cohabiting at conception and one died before birth, and the adoption was by a stepparent or followed a natural parent’s death.
Sources: Probate Code s.6403 - 120-hour survival requirement · Probate Code s.6406 - Relatives of the halfblood · Probate Code s.6451 - Effect of adoption on the parent-child relationship · Verified 2026-08-21.
The 120-hour rule in practice
It matters most in accidents and in the deaths of elderly couples days apart. If a husband dies and his wife dies four days later, she did not survive him by 120 hours, so for his estate she is treated as having predeceased him entirely — and his property passes as if he had no surviving spouse, to his issue or parents rather than through her estate to hers. Families are routinely astonished by this, and it is decided by hours on a death certificate.
Adopted and stepchildren
An adopted child inherits from the adopting parents as any child would. What section 6451 addresses is the other direction — whether the child still inherits from the natural family, and whether the natural family inherits from the child. Stepchildren who were never adopted are not heirs at all under these sections, which is one of the most common and most painful surprises in an intestate estate.
What these rules never touch
Intestate succession reaches only what passes through the estate. A retirement account or life policy with a named beneficiary, property held in joint tenancy, anything titled in a living trust, and property under a recorded transfer on death deed all pass outside it. Two families with identical statutes can therefore see completely different results, and a will that says one thing loses to a beneficiary designation that says another.
Who administers an intestate estate?
Nobody is named, so section 8461 supplies the order — surviving spouse or domestic partner first, then children, grandchildren, other issue, parents, siblings, and outward. The appointment process is the same petition, and the person appointed is called an administrator rather than an executor. Section 8402 still applies: a non-resident of the United States cannot serve, and unlike a named executor there is no exemption from that bar.
When intestacy becomes a dispute
Intestate estates generate their own kinds of fight. Someone claims a parent-child relationship that was never formalised. A separated but undivorced spouse takes ahead of the partner of twenty years. A half-sibling nobody knew about appears with an equal share. And because there is no document expressing intent, there is nothing to contest — the argument is instead about who the heirs are, which is a status question decided on evidence of relationship rather than on capacity or influence.
Related: administering an intestate estate, who gets appointed when there is no executor, the shortcut available to a surviving spouse, and being left out of a will that does exist.