Dying without a Will: How Courts Decide Who Gets What
If you die without a will, then the law calls that dying “intestate” (as opposed to dying with a will, which is called “testate”). Many people don’t bother getting a will, because they figure it doesn’t matter: if they die, their spouse gets everything, and if their spouse has already died by that time, their kids get everything split equally. Easy, right?
Unfortunately, it’s not always that easy.
If you die intestate, then California’s intestate laws (CA Probate Sections 6400-6455, if you’d like to look them up) dictate who inherits your property and other assets. Here are the general rules:
- If the deceased person)did not leave behind any descendants (children, grandchildren, etc.), then their surviving spouse inherits everything. If the decedent was survived by descendants, but did not leave behind a spouse, then the inheritance is split equally between the descendants.
- If the decedent did leave behind descendants as well as a spouse, and those descendants are also the descendants of the surviving spouse, then the surviving spouse still inherits everything. For example, if a person dies and is survived by his wife and their two children, his wife inherits the entire estate.
- If the decedent did leave behind descendants as well as a spouse, and at least one of those descendants is not a descendant of the surviving spouse, then the surviving spouse inherits 50% and the other 50% is divided equally between the descendants who are not also descendants of the surviving spouse. For example, a person dies and is survived by her husband and three children. One of those children is also child of the surviving husband, but the other two children are the decedent’s children from a previous marriage (in other words, the surviving husband’s step-children). In this case, the surviving husband would inherit 50% of the estate, and the other two children (the step-children of the surviving husband) would split the other 50%, each winding up with 25% apiece.
As you might imagine, it’s Rule #3 that often winds up surprising people. Many folks assume that, upon their death, their spouse will inherit everything. However, if you leave behind children that are not your surviving spouse’s, then your spouse will only inherit 50% and the other 50% will go to those children. For people with children from different partners, this can obviously be a large issue, and one that almost no one sees coming until it’s too late.
One of the main reasons everyone should have a good estate plan is to make sure that, after your death, your assets go to exactly how you would like them to go. A will or trust can take care of this and spell it out in easy to understand language that your family can rely on. The intestate laws, however, can be confusing and can be changed anytime the state legislature decides to do so. I know I wouldn’t want to let the politicians in California decide who inherits from me. I wouldn’t recommend that you let them make that decision for you, either.
To learn more about how Miller & Associates can work with you to ensure that your hard-earned assets are passed down exactly how you would like, or for questions about dying without a will: how Courts decide who gets what, please call us at (877) 568-2977 or contact us via our website to schedule a consultation.
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