Intestate Succession and California Distribution

California intestacy analysis must begin with property characterization, because the community-property system overrides the ordinary heir schedule for the largest pool of marital wealth. Under Probate Code §6401(a) and (b), the surviving spouse already owns her undivided one-half interest in the community property and quasi-community property by operation of marital property law; she does not 'inherit' that half. What passes by intestate succession is only the decedent's one-half of the community and quasi-community estate, and the statute directs that this entire one-half passes to the surviving spouse.

The practical result, and the single most tested California rule, is that a married decedent who dies intestate without a will leaves all community and quasi-community property to the surviving spouse — the decedent's half by succession and the spouse's own half by ownership. Quasi-community property is property acquired during marriage while domiciled elsewhere that would have been community property had the couple been domiciled in California; for succession purposes §6401(b) treats the decedent's half exactly like community property.

Registered domestic partners receive the same treatment as spouses throughout the Probate Code, so every reference to 'surviving spouse' should be read to include a surviving registered domestic partner. Students must keep the CP characterization step separate from the separate-property step: an examinee who applies the §6401(c) fractions to community property will reach the wrong share.

The bar examiners frequently combine a sizable community estate (a house and bank accounts acquired during marriage) with a smaller separate estate (a pre-marital inheritance) precisely to test whether the candidate splits the two pools and applies §6401(a)-(b) to the community side and §6401(c) to the separate side. Always characterize first, then distribute each pool under its own rule.

Separate property — property owned before marriage, or acquired during marriage by gift, devise, or descent, plus the rents, issues, and profits thereof — is distributed under a graduated schedule in §6401(c) that balances the spouse's claim against the decedent's blood relatives. The surviving spouse takes the entire separate estate only when the decedent leaves no surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

The spouse takes one-half of the separate property in two situations: where the decedent leaves only one child or the issue of one deceased child, OR where the decedent leaves no issue but does leave a parent or parents, or the issue of a parent (i.e., siblings or their descendants). The spouse takes one-third of the separate property where the decedent leaves more than one child; one child and the issue of one or more deceased children; or the issue of two or more deceased children. The balance not passing to the spouse — the other half or two-thirds — then passes to the issue, parents, or siblings under §6402 in the order described below.

A recurring exam trap is the unmarried decedent or the decedent whose marital share leaves a remainder: candidates must compute the spouse's fraction first, then distribute the residue down the §6402 ladder. Note the asymmetry: a decedent with one child gives the spouse one-half, but a decedent with two children gives the spouse only one-third (not two-thirds), and the children share the remaining two-thirds equally. The schedule rewards close family and shrinks the spouse's separate-property share as the decedent's descendant line grows, a deliberate legislative judgment that the separate estate should reach the bloodline.

Once the spouse's share (or the entirety, for an unmarried decedent) is fixed, the residue passes under §6402 in a fixed order of priority: (1) to the decedent's issue, taking by representation under §240; (2) if no issue, to the decedent's parents equally; (3) if no parents, to the issue of the parents (the decedent's siblings and their descendants) by representation; (4) if none, to grandparents or their issue; (5) then to issue of a predeceased spouse ('stepchildren' by that route); (6) then to next of kin; (7) then to a predeceased spouse's parents or their issue; and finally (8) escheat to the State of California.

California's default representation system is §240, often called 'per capita with representation' or 'modern per stirpes,' but it is critical to apply it correctly: the estate is divided into equal shares at the FIRST generation that has at least one living member, with each living member taking one share and the share of each deceased member of that generation passing to that member's issue by representation. This differs from classic per stirpes (which always divides at the first generation below the decedent even if everyone there is dead) and from strict per capita at each generation (§247, which pools and re-divides dropped shares).

Suppose the decedent's three children all predecease, leaving the first child two grandchildren, the second child one grandchild, and the third child three grandchildren. Under §240, because no child survives, the first generation with living takers is the grandchildren; there are six grandchildren and each takes one-sixth. If, instead, one child survived, the division would occur at the child level: the surviving child takes a one-third share, and each deceased child's one-third passes down to that child's own issue.

Several status and timing rules round out California intestacy. The 120-hour survival requirement of §6403 (mirroring §220 for community property and §6211 for joint tenancy) provides that an heir who fails to survive the decedent by 120 hours, established by clear and convincing evidence, is deemed to have predeceased the decedent; this prevents double administration when family members die in a common disaster and re-routes the share to the next eligible takers. Adoption is governed by §§6450-6455.

An adopted child is treated as the natural child of the adopting parents and inherits from and through them, while adoption generally severs the inheritance relationship with the natural parents — except that §6451 preserves inheritance from a natural parent where the child was adopted by the spouse or surviving spouse of a natural parent (the classic stepparent-adoption scenario) or where the natural parent and child lived together as parent and child and the adoption occurred after the natural parent's death. Half-blood relatives inherit exactly as whole-blood relatives under §6406, so a half-sibling shares equally with a full sibling.

A person who is related to the decedent through two lines of relationship — for example, related as both a cousin and, through a second marriage, as a more distant relative — takes only a single share, the larger one, under §6413. Posthumously conceived children may inherit under §249.5 if strict notice and timing conditions are met, and a child in gestation at the decedent's death who is later born alive is treated as living at death under §6407.

Finally, the slayer rule (§250-258) bars a person who feloniously and intentionally kills the decedent from any inheritance, treating the killer as having predeceased; a final criminal conviction is conclusive, and a civil preponderance standard applies absent conviction.

Separate-Property Spousal Share (§6401(c))