The majority’s decision fails to grant the surviving putative spouse, Helen Hafner, any share of the deceased’s separate property. The majority thereby ignores our Supreme Court’s decision in Estate of Leslie (1984) 37 Cal.3d 186 [207 Cal.Rptr. 561, 689 P.2d 133], and the statutory scheme set forth in former Probate Code section 2211 governing intestate succession to separate property.
*1401Intestate succession in California is governed exclusively by statute. The basic flaw in the majority’s analysis is that it attempts to apply equitable principles in distributing the decedent’s estate instead of following the statutory scheme.
The majority relies on decisions which predate the enactment of Civil Code section 4452 (section 4452). These appellate decisions applied equitable principles to establish the right of a surviving putative spouse to succeed to a distributive share of property accumulated during a putative union under former Probate Code sections 201 and 201.5 (dealing with community and quasi-community property respectively) as a “surviving spouse.”2 The equitable doctrines developed in the pre-section 4452 line of cases did not alter the formula for intestate succession as set forth in the Probate Code. The majority’s resolution of this case, however, does alter the statutory formula for intestate succession.
In enacting section 4452, the Legislature established the legal right of a surviving putative spouse to property acquired during the putative union which would have been community property or quasi-community property if the union had not been void or voidable, and termed this property ‘ ‘ quasi-marital property. ’ ’
Under section 4452, the putative spouse has a vested share of one-half of the quasi-marital property accumulated during the putative union. If the union is dissolved prior to the death of one spouse, each spouse is entitled to one-half of the quasi-marital property. Death of either spouse to a pu*1402tative union does not terminate the surviving spouse’s interest in quasi-marital property.
A surviving putative spouse’s one-half interest in quasi-marital property is vested and not subject to intestate succession by any other person. Thus, the proper legal distribution of the decedent’s estate gives the putative spouse one-half of the decedent’s entire estate pursuant to section 4452.3
Purporting to apply general and equitable principles which are inapplicable, the majority then concludes that only the surviving legal spouse and the deceased’s four children are entitled to share in the other half of the decedent’s entire estate. The majority thus holds that the surviving putative spouse has no interest whatsoever in the decedent’s separate property. The majority’s holding violates former Probate Code section 221 and the Estate of Leslie and errs in attempting a resolution of this thorny problem by distributing decedent’s separate property on an “all or nothing” basis.
In Leslie, the Supreme Court was confronted with the conflicting claims to a deceased wife’s separate property asserted by her putative husband and a son by a prior marriage. The question presented in Leslie was whether the putative husband was entitled to succeed to a share of the deceased wife’s separate property under the Probate Code rather than under equitable principles. The court in Leslie concluded that the trial court had incorrectly determined that the husband was not the decedent’s “surviving spouse” under former Probate Code section 221.
Leslie cited the decision in Estate of Krone (1948) 83 Cal.App.2d 766 [189 P.2d 741], and stated that “Krone has been read ‘to recognize a putative [spouse] as a legal spouse for the purpose of succession,’” under Probate Code section 201, citing Kunakoff v. Woods (1958) 166 Cal.App.2d 59, 65-66 [332 P.2d 773], and “[t]hat reading is clearly applicable to the determination of the separate property rights of a putative spouse.” (Estate of Leslie, supra, 37 Cal.3d at p. 194.)
“To accord a surviving putative spouse rights to the decedent’s separate property honors rather than disregards the statutory scheme governing intestate succession. (Laughran & Laughran [.Property and Inheritance Rights of Putative Spouses in California: Selected Problems and Suggested *1403Solutions (1977)] 11 Loyola L.A. L.Rev. [45] at p. 67 . . . .) Since the right to succession is not an inherent or natural right, but purely a creature of statute [citation], a surviving legal spouse inherits a decedent’s separate property ‘only because the statutes provide that a person having the status of “surviving spouse” takes a certain share.’ (Laughran & Laughran, op. cit. supra, 11 Loyola L.A. L.Rev. at p. 67.) To accord a surviving putative spouse the status of ‘surviving spouse’ simply recognizes that a good faith belief in the marriage should put the putative spouse in the same position as a survivor of a legal marriage. (Id., at p. 68.)” (Estate of Leslie, supra, 37 Cal.3d at p. 199, italics added.)
Under the above-quoted reasoning of Leslie, a surviving putative spouse is entitled to a legal share of a deceased spouse’s separate property. While the court in Leslie was not faced with the conflicting claims of two spouses, its reasoning that the rights of surviving putative and legal spouses should be given parity under the law is instructive to a resolution of this appeal. Putting their respective rights to the deceased spouse’s separate property on par requires that the surviving putative and legal spouses share that portion of the deceased’s separate property to which each is entitled to under former Probate Code section 221.
The proper legal distribution of the decedent’s estate in this case should result in the surviving putative spouse taking one-half of the decedent’s entire estate pursuant to section 4452 as her quasi-marital property. As to the remainder of the decedent’s estate, following the mandate in Leslie, the putative and legal spouses should be treated equally. Therefore, under former Probate Code section 221, the proper legal distribution of the remainder of the decedent’s estate should be as follows: one-third of that portion of the estate should be divided equally between the surviving putative and legal spouses; the remaining two-thirds should be distributed in equal shares to the decedent’s four children by both relationships.4
The majority concludes that the surviving putative spouse is not entitled to a family allowance because she is not a “surviving spouse” within the meaning of Probate Code section 6540 (section 6540). Section 6540 provides that the surviving spouse, minor children, and dependent adult handicapped children are entitled to an allowance necessary for their maintenance during the administration of the estate.
The majority’s conclusion is unreasonable in view of the Leslie mandate which accords a putative spouse equal status with the legal spouse for *1404essentially all purposes. (See Estate of Leslie, supra, 37 Cal.3d at pp. 195-196.) The better resolution is to give both the surviving putative and legal spouses consideration for a family allowance should their circumstances warrant it. Following the majority’s reasoning, if the decedent left only a putative spouse and no legal spouse, the putative spouse would not be entitled to a family allowance. It is unlikely that the Legislature intended such a narrow reading of section 6540.
I would remand the matter to the superior court for a modification of the judgment consistent with the distribution scheme set forth above. I would also require the trial court to consider the necessity of a family allowance to both spouses under section 6540.
Respondent’s petition for review by the Supreme Court was denied November 20, 1986. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.
Former Probate Code section 221 provided that: “If the decedent leaves a surviving spouse, and only one child or the lawful issue of a deceased child, the estate goes one-half to the surviving spouse and one-half to the child or issue. If the decedent leaves a surviving spouse, and more than one child living or one child living and the lawful issue of one or more deceased children, the estate goes one-third to the surviving spouse and the remainder in equal shares to his children . . . .”
The majority opinion at page 1393 states: “[I]t is clear that every court which has considered the issue of succession to a decedent’s intestate estate, as between a surviving legal spouse and a surviving putative spouse, has awarded one-half of the quasi-marital property to the putative spouse and the other half to the legal spouse, or spouse and children, under the provisions of [former Probate Code] section 221.” The majority cites Estate of Ricci (1962) 201 Cal.App.2d 146 [19 Cal.Rptr. 739]; Sousa v. Freitas (1970) 10 Cal.App.3d 660 [89 Cal.Rptr. 485]; Estate of Atherley (1975) 44 Cal.App.3d 758 [119 Cal.Rptr. 41, 81 A.L.R.3d 97]; and Estate of Vargas (1974) 36 Cal.App.3d 714 [111 Cal.Rptr. 779, 81 A.L.R.3d 1].
The decisions in Estate of Ricci, supra, 201 Cal.App.2d 146, and Sousa v. Freitas, supra, 10 Cal.App.3d 660, are distinguishable from the present appeal because these decisions predate the enactment of Civil Code section 5118. The decision in the Estate of Atherley, supra, 44 Cal.App.3d 758 did not consider the applicability of section 5118 since that statute, as originally enacted, was not effective until after the decedent Harold Atherley’s death in 1969. The decision in Vargas, supra, 36 Cal.App.3d 714 is distinguishable under a unique factual situation not present in this appeal. In Vargas, two innocent women were victims of a man who had contemporaneously lived a double life. In this appeal, appellant had long been deserted by the decedent and had learned to live her life separate and apart from the decedent physically, emotionally, and financially.
Thus, none of the decisions from which the majority rests its conclusion considers the fact situation presented in this appeal and the impact of the enactment of Civil Code sections 4452 and 5118.
The majority concludes that the putative spouse is entitled to one-half of the decedent’s estate but under a different analysis.
The trial court concluded that section 4452 allows the putative spouse to succeed to the decedent’s entire estate. While the trial court’s conclusion has arguable merit, I would interpret section 4452 as applying only to the surviving putative spouse’s one-half interest in the quasi-marital property if the deceased spouse also left a legal spouse and/or children.
It should be noted that the only difference between the distribution suggested here and that formulated by the majority is that the surviving spouse’s share of the decedent’s separate property would be divided by the surviving legal and putative spouses and not given entirely to the surviving legal spouse.