In California, all property acquired by married persons is either community property or separate property. Spouses are presumed to contribute equally to marital earnings, so typically anything earned by either spouse during marriage is community property and owned equally by both spouses.

How Does a Spouse’s Death Affect Community Property?

In community property states, a spouse is free to transfer all of their separate property through a will in the event of his or her death. However, a spouse may only transfer one-half of the marriage’s community property by will. The surviving spouse still owns the other half.

If the spouse has not left a will, property is inherited according to the laws of intestate succession. The deceased spouse’s half of the community property will pass to the surviving spouse. The deceased spouse’s separate property will pass:

  • Entirely to the surviving spouse if there are no surviving children, grandchildren, or immediate family members.
  • Half to the surviving spouse, and half to a single surviving child or any other immediate family members.
  • One-third to the surviving spouse, and two-thirds to multiple surviving children and/or grandchildren.

Should I Contact an Attorney?

Distribution of property upon the death of a spouse can be complicated. California law very is specific about who has a share in the deceased separate and community property. If you have recently lost a spouse or family member, an experienced California estate lawyer can help distinguish between separate and community property and examine your best options.