What Happens to Community Property When a Spouse Dies? A Plain-English Guide to Probate Code §§ 100–105 and 6400–6402

If you're married (or in a registered domestic partnership) in California and you or your spouse passes away, what happens to the property you built together? California's Probate Code has a specific set of rules for exactly this situation — Sections 100 through 105. Here's what they actually mean, without the legal jargon.

The Basic Rule: You Already Own Half

Probate Code § 100 lays down the foundation: when a married person dies, one-half of the community property already belongs to the surviving spouse, and the other half belongs to the person who died.

This is a big deal, and people often misunderstand it. The surviving spouse isn't inheriting their half through a will or through probate — they already owned it, the whole time, simply by being married. Only the deceased spouse's half is up for grabs through a will or the state's default inheritance rules.

What counts as "community property"? Generally, anything either spouse earned or acquired during the marriage — wages, a house bought together, retirement contributions made during the marriage, and so on. (Property owned before the marriage, or received as a gift or inheritance during the marriage, is usually separate property and works differently.)

A flexible option: Spouses can also agree in writing to divide things unevenly — for example, one spouse keeps the house while the other keeps a larger share of the bank accounts — rather than splitting every single asset exactly 50/50. That written agreement isn't required to do this, but it helps avoid confusion later.

What About Property From Out of State? "Quasi-Community Property"

Probate Code § 101 covers a special category called quasi-community property. This applies to couples who moved to California from another state.

Here's the scenario: say a couple lived in Texas for 20 years, bought a house and built savings there, and then retired to California. Under Texas law, some of that property might not have been treated as "community property." But California doesn't want a surviving spouse to lose out just because the couple used to live somewhere else.

So California says: if the property would have been community property had the couple been living in California the whole time, it's treated as quasi-community property — and the exact same 50/50 split rule applies when one spouse dies, as long as the deceased spouse was domiciled in California at death.

Closing a Loophole: The "Recapture" Rule

Probate Code § 102 exists to stop a specific kind of maneuver: what if, shortly before dying, someone tries to give away out-of-state ("quasi-community") property to someone other than their spouse — cutting the surviving spouse out entirely?

This section lets the surviving spouse claw back (or "recapture") their share, but only under specific conditions:

• The deceased spouse was domiciled in California when they died.

• The property was given away without getting real value in return, and without the surviving spouse's written consent.

• And the deceased spouse kept some kind of ongoing control or benefit from the property until death — for example, they kept living in it, kept collecting the income from it, or kept the power to take it back or change who gets it.

If all of that is true, the surviving spouse can force the person who received the property to give back half of it (or half its value, or half the proceeds if it's already been sold).

Important carve-out: This rule does not apply to life insurance, accident insurance, joint annuities, or pensions that name someone else as the beneficiary — those pass to whoever was named, no clawback allowed.

What If Both Spouses Die and No One Knows Who Died First?

Probate Code § 103 handles a genuinely tragic but legally important scenario: both spouses die together (a car accident, for example) and there's no way to prove — by clear and convincing evidence — which spouse survived the other, even for a moment.

In that case, the law essentially "splits the difference": one half of the community property is treated as though the husband/wife survived, and the other half is treated as though the other spouse survived. Each half then passes according to that spouse's own will (or the state's default inheritance rules if there's no will), as if each one had, in fact, outlived the other for their respective half.

This avoids an unfair result where, say, one side's family gets everything just because of an assumption about who technically died a few seconds later.

Living Trusts Get Special Treatment

Probate Code § 104 addresses a very common modern estate planning tool: the revocable living trust.

If a couple transferred their community property into a revocable trust (the kind commonly set up for estate planning to avoid probate), the standard 50/50 rule in § 100 doesn't automatically apply. Instead, whatever the trust document says about what happens at death controls — the trust's own terms take priority.

Probate Code § 104.5 adds an important legal presumption here: simply transferring community property into a revocable trust is presumed to be an agreement that the property keeps its character as community property "in the aggregate" for purposes of however the trust divides things up. In plain terms — moving assets into a joint trust doesn't automatically convert community property into something else; the law assumes you still intended the community property rules to apply to the trust's overall division, unless the trust says otherwise.

Does This Apply to Everyone?

Probate Code § 105 sets the boundary line: all of these rules only apply if the person died on or after January 1, 1985. If someone passed away before that date, the older law that was in effect at the time still controls. This mostly matters in rare situations involving very old, unresolved estates.

What Happens if there is no Last Will & Testament? The Intestate Succession Rules

Everything above assumes there's a will or trust directing where the deceased spouse's half goes. But what if there's no will at all? California's intestate succession law (Probate Code §§ 6400–6402) picks up right where §§ 100–105 leave off — and it treats community property very differently from separate property.

Probate Code § 6400 sets the starting point: any part of an estate that isn't effectively covered by a will passes to the decedent's heirs under these intestacy rules.

Probate Code § 6401 is the key section for spouses, and it plugs directly into what we covered above:

• Community property: The surviving spouse's intestate share is simply the decedent's one-half of the community property under § 100 — meaning the survivor inherits the entire community property estate. There's no splitting with children or other relatives here.

• Quasi-community property: Same idea — the surviving spouse's intestate share is the decedent's one-half under § 101, so again, the survivor ends up with all of it.

• Separate property: This is where things change. The surviving spouse's share of separate property depends on who else survives the decedent:

  • Everything, if the decedent leaves no surviving children, parents, siblings, or their descendants.

  • One-half, if the decedent leaves exactly one child (or that child's descendants), or leaves no children but leaves a surviving parent (or the parent's descendants).

  • One-third, if the decedent leaves more than one child, or one child plus descendants of other deceased children, or descendants of two or more deceased children.

Probate Code § 6402 explains what happens to the portion of separate property that doesn't go to the surviving spouse (or the whole estate, if there's no surviving spouse at all). It passes down a strict priority ladder:

1. First to the decedent's children (or their descendants if a child has passed away).

2. If none, to the decedent's parents.

3. If none, to the parents' other descendants (i.e., the decedent's siblings, nieces, and nephews).

4. If none, to grandparents or their descendants.

5. If none, to the descendants of a predeceased spouse (an ex-spouse or a spouse who died before the decedent).

6. If none, to the next closest surviving relatives ("next of kin").

7. If none, to the parents (or their descendants) of a predeceased spouse.

Putting It Together: An Example

Say David dies without a will, leaving:

• $800,000 in community property (home and savings built during the marriage)

• $200,000 in separate property (an inheritance he kept separate)

He's survived by his wife Maria and their two adult children.

Community property: Maria already owned $400,000 outright (§ 100). Under § 6401(a), she also inherits David's $400,000 half — the children get nothing from this pot. Maria ends up with the full $800,000.

Separate property: Because David leaves more than one child, § 6401(c)(3)(A) gives Maria only one-third of the $200,000 (~$66,667), with the remaining two-thirds split between the two children under § 6402(a) (~$66,667 each).

Bottom line: Maria ends up with roughly $866,667, and each child ends up with roughly $66,667 — all without a single piece of paper directing where any of it should go, just by operation of these statutes.

This is exactly why estate planning attorneys care so much about the community-vs-separate property distinction: intestacy is remarkably protective of a surviving spouse when it comes to community property, but it can produce results a person never intended when it comes to separate property — especially in blended families.

Why This Matters

These sections come up constantly in real-world situations:

• Estate planning: Knowing that your spouse already owns half of what you built together changes how you think about what you can — and can't — leave to someone else in your will.

• Blended families: If you have children from a previous relationship and want to make sure they inherit something specific, understanding what's actually "yours" to give away (your half) versus what's already your spouse's (their half) is critical.

• Trust planning: If you and your spouse have a living trust, the trust document itself — not the default community property statute — controls what happens to that property when one of you dies. That makes getting the trust's language right especially important.

• Couples who relocated to California: If you spent years building assets in another state before moving here, quasi-community property rules mean California still protects the surviving spouse's stake in that property.

The Bottom Line

California's community property system is built around one core idea: marriage is a partnership, and both partners already own their share of what they built together — no inheritance required. These sections of the Probate Code exist to make sure that principle holds up cleanly, whether the couple has always lived in California, moved here from elsewhere, set up a trust, or faced the tragic uncertainty of a simultaneous death.

This post summarizes California Probate Code §§ 100–105 and §§ 6400–6402 for general informational purposes. It is not legal advice. Estate planning and probate situations are highly fact-specific — consult an attorney about how these rules apply to your circumstances.