Your spouse of 32 years dies unexpectedly. Between the grief and the arrangements, someone mentions “probate” and “estate settlement,” and suddenly you are asking the questions that matter most: What happens to our house? Our savings? Everything we built together during three decades of marriage?
If you are married in California, one statute answers these questions more than any other. It is buried in Division 2 of the Probate Code — Section 100. Most people have never heard of it. Most estate planning attorneys treat it as a formality. But this single provision determines what the surviving spouse already owns, what the decedent’s estate plan can control, and — critically — what the entire Family Code has to say about property characterization at death.
I tell clients in San Luis Obispo County, Santa Barbara County, and Ventura County the same thing: if you do not understand Probate Code § 100, you do not understand what happens to your property when you or your spouse dies. Everything else — the trust, the will, the beneficiary designations — is built on top of this foundation.
What Probate Code § 100 Actually Says
Section 100(a) is deceptively simple: when a married person dies, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent.
Read that carefully. The statute does not say the surviving spouse inherits half the community property. It says the surviving spouse already owns half. That half was never the decedent’s to give away, and the decedent’s estate plan cannot touch it. No will, no trust, no beneficiary designation can override the surviving spouse’s ownership of their community property share.
The decedent’s half — and only the decedent’s half — passes according to their estate plan. If there is a trust, the decedent’s half goes where the trust directs. If there is a will, it goes where the will directs. If there is neither, it passes under California’s intestate succession rules.
Section 100(b) allows spouses to agree in writing to divide their community property on a basis other than 50/50. But without such an agreement — and these are rare — the equal split is the law.
Why § 100 Changes Everything: The Family Code at Death
Here is the insight that the title of this article promises, and that most discussions of § 100 miss entirely.
Probate Code § 100(a) does not operate in a vacuum. It pulls the entire Family Code into the probate context. Every characterization question, every fiduciary duty, every transmutation rule that applies during marriage also applies when property is distributed at death.
This matters enormously in practice. Consider what flows from § 100’s community property framework:
Family Code § 760 — the community property presumption. All property acquired during marriage is presumed to be community property. At death, the trustee or executor must correctly characterize every asset. Get it wrong, and the surviving spouse either loses property they own or receives property that should go to other beneficiaries.
Family Code §§ 850-852 — transmutation. Spouses can change property from community to separate (or vice versa), but only through a written instrument that contains an express declaration that the character of the property is being changed. Oral agreements are not enough. Conduct is not enough. The writing requirement is strictly enforced. At death, I see trustees who assume that because a house was titled in one spouse’s name, it must be separate property. That assumption ignores the community property presumption under § 760 and the transmutation requirements under § 852. Title alone does not determine character — the California Supreme Court made that clear in Marriage of Valli (2014) 58 Cal.4th 1396.
Family Code § 721 — fiduciary duties between spouses. Spouses owe each other the highest duty of good faith and fair dealing. This duty extends to all transactions between them — including any agreements that purport to change the character of community property. At death, if a surviving spouse discovers that the decedent obtained a transmutation or postnuptial agreement through breach of fiduciary duty, the agreement can be set aside.
This is what makes § 100 transformative. It is not just a rule about splitting property 50/50. It is the doorway through which the entire body of California family law enters the probate courtroom.
What Is Community Property?
California is a community property state. All property acquired by either spouse during marriage — regardless of which spouse earned the money or whose name appears on title — belongs equally to both spouses by operation of law.
Community property includes wages and salaries earned during marriage, real estate purchased during marriage (the family home in Santa Maria, a rental property in Paso Robles, a vacation home on the coast), bank and investment accounts funded with earnings during marriage, retirement accounts funded during marriage (401(k)s, IRAs, pensions), business interests acquired or developed during marriage, vehicles and personal property purchased during marriage, and debt accumulated during marriage.
Separate property — assets owned before marriage, gifts received by one spouse alone, and inheritances — belongs solely to the spouse who owns it.
But the line between community and separate property is rarely clean. A house owned before marriage becomes partially community property when mortgage payments are made with community funds during the marriage. Rental income from a separate property asset is community property in most circumstances. A business started before marriage that grows substantially during marriage may have a significant community property component. These mixed-character assets are where disputes arise — and where proper legal analysis under both the Family Code and the Probate Code becomes essential.
What Actually Happens to Community Property When a Spouse Dies
Let me walk through this precisely, because the original version of this article misstated the law.
When a spouse dies, the surviving spouse already owns their half of all community property. That half never enters the decedent’s estate. It is not subject to probate, it is not controlled by the decedent’s will or trust, and the decedent’s creditors generally cannot reach it.
The decedent’s half — the other 50% — is distributed according to the decedent’s estate plan. This is the half the decedent controls through their trust or will.
Example: You and your spouse own a house in Santa Barbara worth $1.2 million, held as community property. You also have $300,000 in a joint brokerage account funded entirely with earnings during the marriage. Your spouse dies.
Your half: You already own $600,000 of the house and $150,000 of the brokerage account. This is yours by operation of law. No probate, no court order, no transfer needed for you to own it — though you will need to clear title through administrative procedures.
Your spouse’s half: $600,000 of the house and $150,000 of the brokerage account is distributed according to your spouse’s trust, will, or intestate succession. If the trust leaves everything to you, you end up with 100% of both assets. If the trust leaves the decedent’s half to children from a prior marriage, they receive $750,000 in assets and you keep your $750,000.
This distinction matters profoundly for blended families on the Central Coast and throughout California. The surviving spouse is protected — no one can take their half — but the decedent’s half goes where the decedent directed.
Clearing Title After Death
While the surviving spouse owns their half by operation of law, there are administrative steps to formalize the transfer and clear title:
For real property, you may file a spousal property petition under Probate Code §§ 13650-13660 — a streamlined court procedure that is faster and less expensive than full probate. If the property was held as community property with right of survivorship, you record an Affidavit of Death of Spouse with the county recorder along with a certified death certificate — no court proceeding required.
For financial accounts, you will need to provide the death certificate and appropriate documentation to each institution.
If any dispute arises about whether property is community or separate — and these disputes are common — Probate Code § 850 provides the mechanism to petition the court to determine title. I use § 850 petitions regularly in my practice for surviving spouses asserting community property rights that a trustee or executor has failed to recognize.
Quasi-Community Property: Protecting Spouses Who Relocated to California
Many families on the Central Coast moved here from other states. A couple who spent twenty years in Texas, New York, or Illinois may have accumulated substantial wealth in a state that does not recognize community property. What happens when they retire to San Luis Obispo or Ventura County and one spouse dies?
Probate Code § 101 answers this question. Quasi-community property is defined as property acquired while living in another state that would have been community property had the couple been living in California when they acquired it. At death, quasi-community property is treated the same as community property under § 100 — the surviving spouse owns half, and the decedent’s estate controls the other half.
Example: You and your spouse lived in Virginia for 25 years, saving $500,000 in investment accounts from your combined earnings. You move to Santa Maria and your spouse dies five years later. Virginia is not a community property state, so those investments were not community property under Virginia law. But because your spouse died as a California domiciliary, those investments are quasi-community property under § 101. You own half — $250,000 — by operation of law.
Important limitation: Quasi-community property treatment for real estate applies only to property located in California. If you still own a house in Virginia, California courts have no jurisdiction to treat it as quasi-community property.
Can the Decedent’s Will Override Community Property Rights?
No. And this is one of the most important protections California law provides.
The surviving spouse’s half of community property belongs to them. Full stop. If your spouse wrote a will leaving “everything” to children from a prior marriage, that will cannot touch your half. The will controls only the decedent’s half of community property, plus any separate property the decedent owned.
If you discover that a trustee is attempting to administer your community property — distributing your half to other beneficiaries or treating community assets as if they belonged entirely to the decedent’s estate — a Probate Code § 850 petition is the tool to recover what is rightfully yours.
The Omitted Spouse Doctrine
California provides additional protection through the omitted spouse statute, Probate Code § 21610. If your spouse executed a will or trust before your marriage and never updated it to address you, the law presumes you were left out by oversight — not by intent.
As an omitted spouse, you are entitled to an intestate share of the decedent’s estate. Under Probate Code § 6401, that means the decedent’s entire half of community property. For the decedent’s separate property, you receive one-half if the decedent left one child (or issue of a deceased child), or one-third if the decedent left more than one child.
Exceptions apply: if the estate plan shows on its face that the omission was intentional, if you signed a valid waiver such as a prenuptial agreement (enforceable under Family Code §§ 1610-1617, subject to the voluntariness requirements of § 1615), or if the decedent provided for you through other means outside the estate plan.
Community Property with Right of Survivorship
Standard community property gives the surviving spouse their half but leaves the decedent’s half to pass through the estate plan. Community property with right of survivorship (CPWROS) works differently: when one spouse dies, the surviving spouse becomes sole owner of the entire asset automatically. No probate needed.
CPWROS provides three advantages: automatic transfer at death bypassing probate, the full step-up in basis for tax purposes (same as standard community property), and simplified administration through recording an Affidavit of Death with the county recorder.
To establish CPWROS, the deed or account title must explicitly use the words “community property with right of survivorship.” Generic language does not suffice.
The tradeoff: CPWROS eliminates the decedent’s ability to direct their half to anyone other than the surviving spouse. For blended families where one spouse wants their half to pass to children from a prior marriage, standard community property — not CPWROS — is typically the right choice. I discuss this tradeoff with every client in my estate planning practice, because the right answer depends entirely on the family’s circumstances.
The Tax Advantage: Full Step-Up in Basis
This is where community property delivers extraordinary value.
Under Internal Revenue Code § 1014, when one spouse dies, both halves of community property receive a step-up in basis to current fair market value. This is the full step-up — and it applies whether the property is standard community property or CPWROS.
Example: You and your spouse purchased a home in San Luis Obispo in 1995 for $250,000. Today it is worth $1.5 million. Your spouse dies. Because the house is community property, the entire property — both halves — steps up to $1.5 million. If you sell it for $1.55 million, you owe capital gains tax on only $50,000 of gain.
Compare that to joint tenancy: only the decedent’s half receives a step-up. Your basis would be $875,000 (your original $125,000 plus the stepped-up $750,000 for the decedent’s half). Selling for $1.55 million means capital gains tax on $675,000 — potentially over $100,000 more in taxes than community property.
This is why holding California real estate as joint tenancy instead of community property is one of the most expensive mistakes I see. Families in Paso Robles, Lompoc, Santa Maria, and throughout the Central Coast lose tens or hundreds of thousands of dollars in unnecessary taxes because their property was titled incorrectly.
Important exception — retirement accounts: 401(k)s, IRAs, and pensions do not receive a step-up in basis. These accounts retain their tax-deferred status regardless of community property characterization. And critically, federal ERISA law preempts California community property law for covered retirement plans. The U.S. Supreme Court held in Boggs v. Boggs (1997) 520 U.S. 833 that ERISA governs the distribution of covered retirement benefits — meaning beneficiary designations on 401(k)s and employer-sponsored plans override California community property rights. This is a trap for surviving spouses who assume their community property interest in a retirement account will be honored automatically.
Simultaneous Death
When both spouses die simultaneously — or when the order of death cannot be determined — Probate Code § 103 provides that each spouse’s half of community property is distributed as if that spouse survived the other. In practice, each estate distributes its own half according to its own estate plan. This prevents the arbitrary result of assigning all community property to one estate.
Common Mistakes That Cost Central Coast Families
Holding property in joint tenancy instead of community property. This eliminates the full step-up in basis and can cost your heirs hundreds of thousands of dollars. If your home or investment accounts are titled as joint tenancy, consult with an attorney about converting to community property or CPWROS.
Commingling separate and community property. Once separate property is mixed with community funds in a bank account, tracing becomes difficult and expensive. The California Supreme Court addressed this in Marriage of Mix (1975) 14 Cal.3d 604, establishing the framework for tracing commingled funds — but prevention is far simpler than litigation. Keep separate property in separate accounts with clear documentation.
Assuming title determines character. The community property presumption under Family Code § 760 applies regardless of how title is held. A house in one spouse’s name alone can still be community property. Conversely, a house in both names can be separate property if acquired before marriage and never transmuted. Title is evidence, but it is not conclusive — Marriage of Valli makes this clear.
Ignoring transmutation requirements. Changing property from community to separate (or vice versa) requires a written instrument containing an express declaration — Family Code § 852. Oral agreements, no matter how clear, are unenforceable. I have litigated cases where a surviving spouse learned after death that an informal agreement to keep the house as separate property was legally meaningless because no written transmutation existed.
Failing to update after major life changes. Marriage, divorce, remarriage, moving to California from another state — all of these affect property characterization. Review your estate plan and property titles after any significant life event.
Making gifts of community property without spousal consent. Under Probate Code § 102, if one spouse makes a gift of community property without the other’s written consent, the surviving spouse can reclaim the gifted property after the donor spouse’s death.
Trusts that fail to preserve community property character. Transferring property into a revocable living trust does not automatically preserve its community property character for tax purposes. The trust must contain specific language confirming that community property transferred into it retains its character. Many older trusts lack this language — and the cost to the family can be enormous.
Frequently Asked Questions
Does community property avoid probate in California?
The surviving spouse’s half never goes through probate — it already belongs to them under § 100. The decedent’s half may need to go through probate unless it was held as CPWROS, passed through a trust, or qualifies for simplified procedures like the spousal property petition under Probate Code §§ 13650-13660.
Can my spouse disinherit me from community property?
Your spouse cannot disinherit you from your half. That is yours by law. Your spouse can, however, leave their half to someone else through their will or trust. And for separate property, California has no “elective share” — the decedent can leave their separate property to anyone. The omitted spouse doctrine under § 21610 provides a safety net if you were left out of an estate plan executed before the marriage.
What happens to debt when a spouse dies?
Community debts — obligations incurred during marriage for the benefit of the community — remain the surviving spouse’s responsibility, generally limited to the value of community property. The decedent’s separate debts are paid first from the decedent’s separate property, then from the decedent’s half of community property if necessary. The surviving spouse’s half of community property is generally protected from the decedent’s separate creditors.
How do I prove property is community property?
California presumes that property acquired during marriage is community property (Family Code § 760). The burden of proving otherwise falls on the person claiming the property is separate. Evidence includes purchase records, bank statements showing the source of funds, deeds, title documents, and any written transmutation agreements under Family Code § 852.
What is the difference between community property and community property with right of survivorship?
Both give each spouse a 50% ownership interest and both provide the full step-up in basis. The difference is what happens to the decedent’s half. With standard community property, the decedent’s half passes through their estate plan. With CPWROS, the decedent’s half automatically transfers to the surviving spouse, bypassing probate. CPWROS is simpler but eliminates the decedent’s ability to direct their half elsewhere — an important consideration for blended families.
Does Probate Code § 100 apply to registered domestic partners?
Yes. The statute explicitly includes registered domestic partners. The same 50/50 division applies.
Can I convert joint tenancy to community property?
Yes, and in most cases you should. You must execute and record a new deed changing title from joint tenancy to community property or CPWROS. This preserves the full step-up in basis. Do not attempt this without proper legal documentation — an improperly executed deed can create more problems than it solves.
What if my spouse dies without a will?
Under California’s intestate succession rules (Probate Code § 6401), you receive the decedent’s entire half of community property. For separate property, your share depends on the decedent’s surviving relatives: all of the separate property if there are no children, parents, or siblings; one-half if there is one child; one-third if there are two or more children.
Does ERISA override community property rights for retirement accounts?
Yes. The U.S. Supreme Court held in Boggs v. Boggs (1997) 520 U.S. 833 that ERISA preempts state community property law for covered retirement plans. This means beneficiary designations on 401(k)s and employer-sponsored pension plans control who receives the account — regardless of the surviving spouse’s community property interest. If your spouse named someone other than you as beneficiary on a covered plan, ERISA may prevent you from claiming your community property share. This is one of the most significant traps in California estate planning.
Protect Your Community Property Rights
Understanding Probate Code § 100 is not just a legal exercise. For families in Santa Maria, San Luis Obispo, Santa Barbara, Ventura County, and throughout the Central Coast, it is the foundation of every estate planning decision and every property dispute at death.
At Egan Law, I help Central Coast families protect their community property rights, structure their estates to maximize the step-up in basis, and litigate property characterization disputes when trustees or executors get it wrong. Whether you are planning ahead or dealing with a recent loss, I provide clear guidance grounded in decades of experience at the intersection of California family law and probate law — because in this state, you cannot practice one without understanding the other.
Egan Law
Santa Maria, California
Serving San Luis Obispo County, Santa Barbara County, Ventura County, and the Central Coast
Phone: (805) 332-3984
Web: judeeganlaw.com
