MBE Rules · Community Property
Community Property at Death
Cal. Prob. Code § 100
The rule
At the death of a married person, one-half of the community property belongs to the surviving spouse, and the other half is subject to the decedent's testamentary disposition. Absent a will, the decedent's half also passes to the surviving spouse under the intestacy rules.
In plain English
When a married person dies, their community property is divided into two halves. The surviving spouse automatically retains their half, while the deceased spouse's half can be distributed according to their will or, if there is no will, it goes to the surviving spouse as well.
Worked example
John and Mary were married and owned a house valued at $400,000 as community property. When John passed away without a will, Mary retained her half of the property and also inherited John's half, making her the sole owner of the house. Therefore, Mary ended up with the entire property.
Memory hook
Half for the spouse, half for the will—unless there's no will, then it's all still fair game!
The trap
Exams may confuse students by including scenarios where a will exists but doesn't address community property, leading to misinterpretation of distribution rules.
How examiners test it
Questions often present a fact pattern involving a decedent's will or lack thereof, requiring students to determine the distribution of community property upon death.
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More Community Property rules
- Interspousal Fiduciary Duty · Cal. Fam. Code § 721; § 1100(e)
- Management and Control of CP · Cal. Fam. Code § 1100(a)-(d)
- Equal Division at Dissolution · Cal. Fam. Code § 2550
- Putative Spouse Doctrine · Cal. Fam. Code § 2251
- Business Goodwill · Marriage of Foster (goodwill)
- Severance Pay · Severance pay (Cal.)