What to know about your rights as a surviving spouse when a spouse dies without a will in California

Short answer: In California, a surviving spouse has important legal rights after a spouse dies intestate (without a will). You generally have immediate property rights to community property, priority for control over disposition (funeral/cremation), and a right to seek appointment as the estate’s personal representative (administrator) so you can make estate decisions if family members try to cut you out. The exact share of the decedent’s separate property that you inherit depends on whether the decedent left children, parents or other relatives.

Detailed answer — how California law applies

This section explains the main legal rules that affect a surviving spouse when the other spouse dies without a will under California law.

1. Community property and quasi‑community property

California is a community property state. Property acquired during the marriage is generally community property and belongs equally to both spouses. When one spouse dies, the surviving spouse already owns the community property. In many cases, community property does not need probate because title already belongs to the surviving spouse or passes by operation of law.

Quasi‑community property (property acquired while living in another state that would have been community in California) is treated similarly for estate purposes.

See California Family Code §760 (definition of community property): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=760.&lawCode=FAM.

2. Intestate succession for separate property

If the deceased spouse owned separate property (property owned before marriage, property acquired by gift or inheritance, or property properly transmuted to separate), that property passes under California’s intestacy rules. The surviving spouse has priority to inherit a substantial part — and sometimes all — of the decedent’s separate property. The exact share depends on whether the decedent left:

no surviving children or parents;
children, and whether those children are also children of the surviving spouse; or
only parents surviving (but no descendants).

California’s intestate succession rules are in the Probate Code (Division 6). For the statutory language and the full set of rules, see the Probate Code intestacy provisions: https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=PROB&division=6.&title=&part=2.

3. Who controls estate decisions and probate?

If someone dies without a will, any interested person (typically the surviving spouse when present) can petition the probate court to be appointed the estate’s personal representative (often called an administrator). The personal representative has authority to collect assets, pay debts, and distribute property under the intestacy rules. If family members try to exclude you, you can file to be appointed to manage the estate.

If a family member already filed a competing petition, the probate court decides who should serve based on statutory priority and the court’s view of who will properly administer the estate.

4. Immediate practical rights: possession and funeral decisions

As surviving spouse you typically have the highest priority to make decisions about disposition of the body (burial or cremation) and to take possession of the deceased’s property that is clearly community property or titled jointly. If family members attempt to take or withhold property that is yours (for example, community personal property, joint bank accounts, or items in your home), you can demand return and, if necessary, ask the court for relief.

5. What to do if family members try to cut you out

If the decedent’s family is excluding you from decisions or possession, consider these legal steps:

Gather documents proving your marriage and property rights (marriage certificate, title documents, bank account statements, deeds, pre‑marriage records).
Demand return of community property or jointly titled assets. If they refuse, you can ask law enforcement to intervene for theft/unauthorized taking of your property or file a civil replevin action to recover specific items.
File a petition in probate court to be appointed administrator (letters of administration). As spouse, you are usually the top priority to be appointed.
If urgent relief is needed to prevent dissipation of assets, ask the probate court for temporary emergency orders (for example, an order preserving estate assets or prohibiting sale or transfer).
If disputes are escalating, consider mediation or settlement talks, but protect your rights by getting legal advice early.

Hypothetical examples (to illustrate common outcomes)

These short hypotheticals illustrate how rules commonly apply. They are simplified and meant to show typical paths, not to replace review of your facts.

Example A: Spouses have only community property and no separate property. When one spouse dies, the surviving spouse already owns the community property and does not need probate to claim it.
Example B: A decedent owned a house as separate property and had no children or parents living; the surviving spouse will inherit that separate property under intestacy rules and can petition the court to transfer title.
Example C: A decedent had children from a prior relationship. The surviving spouse still keeps all community property but will inherit a statutory share of the decedent’s separate property while the decedent’s children inherit the remainder under the intestacy rules.

How to preserve and enforce your rights — practical checklist

Get certified copies of the death certificate and your marriage certificate.
Make an inventory of property you believe is community or jointly owned (bank accounts, real estate, vehicles, household items).
Contact the person who holds the decedent’s safe‑deposit box, banks, and title companies to learn whether titles are joint or payable‑on‑death.
If someone is removing property, document it (photos, witness statements) and contact police if theft is involved.
File for appointment as administrator in probate court if family members block access or if probate is necessary to transfer assets.
Talk to an attorney who handles probate and estate matters if the family is contesting your rights or if the estate is complex.

Where to check the law and find help

Key California legal resources:

Probate Code (Intestate succession provisions): California Probate Code, Division 6 (Intestate Succession)
California Family Code (community property definition): Family Code §760
California Courts — probate self‑help resources: https://www.courts.ca.gov/selfhelp‑probate.htm

When you should get legal help

Consider consulting a probate attorney if any of the following are true:

The decedent had significant separate assets that must pass through probate.
Family members are refusing to return property or are trying to dispose of estate assets.
Multiple people file competing petitions to administer the estate.
You need urgent court orders to protect estate assets.

Helpful hints

Keep a calm, factual record of conversations and events. Dates, times and witnesses help later in court.
Collect paperwork early: account statements, titles, deeds, insurance policies, and any beneficiary designations.
Don’t sign away rights under pressure. Ask for time to consult counsel before agreeing to transfer property or sign documents you don’t understand.
If you live together and the house is in both names, joint tenancy or community property with right of survivorship can allow quick transfer; check title carefully.
Be aware that some assets (life insurance, retirement accounts, POD/TOD bank accounts) pass outside probate to listed beneficiaries.

Disclaimer: This article explains general California legal rules and common options for surviving spouses when a spouse dies without a will. It is educational only and is not legal advice. Every situation is different. For advice about your specific situation and to learn how local courts will apply the rules, consult a California probate or estate attorney.