Understanding Intestate Succession

A primary reason people establish a Will or Trust is to specify who will inherit their estate once they have deceased. If a person were to die without having designated specific heirs, or if all their designated heirs predecease, or die simultaneously with them, then their estate would be distributed according to the rules set forth by California laws regarding intestate succession (Probate Code Section 6400ff). It is important for the client to understand these laws and, if necessary, to make contingent distribution plans.

According to the laws of intestate succession, if a person is married at the time of his or her death, then all community and quasi-community property passes to the Surviving Spouse or Surviving Registered Domestic Partner. If a person's spouse or domestic partner is deceased, then potentially ½ of community property could pass to the heirs of that deceased person.

Briefly, the decedent’s separate property passes as follows:

If decedent is married or has a registered domestic partner at time of death and:

Left one living child, or grandchildren / great grandchildren from that one child then deceased, then ½ to Spouse / Partner, and ½ to that one living child or grandchildren /great grandchildren of that child then deceased. If there are no children, grandchildren or great grandchildren, etc., then ½ will pass to the decedent’s parent(s), if living, and if not then to brothers and sisters, if any, and if none, then to grandparents, if any, and if none, then to aunts and uncles, and so on. Or

• left two or more living children, or grandchildren / great grandchildren from any deceased of his/her two or more children, then 1/3 to Spouse / Partner, and 2/3 equally among children / grandchildren / great grandchildren, etc. Or,
• there are no children, grandchildren, great grandchildren, parents, brother, sisters, grandparents, aunts or uncles, etc., then Spouse / Partner receives all of decedent’s separate property.
• Generally speaking, "children" includes a decedent's biological children, including those born out of wedlock, and persons who were legally adopted by the decedent. Stepchildren, foster children, and other parent-child relationships not legally recognized in the decedent's lifetime could sometimes be included, if the relationship was established while the child was a minor and continued for a long period of time.

After these rules, further distribution become complicated and differs depending on the decedent's specific family circumstances.