California Bar Intestate Succession

Last updated: May 2, 2026

Intestate Succession questions are one of the highest-leverage areas to study for the California Bar. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.

The rule

When a California decedent dies without a valid will (wholly or partially intestate), the estate passes under California Probate Code §§ 6400–6414. The first cut is character-based: the surviving spouse or registered domestic partner takes all of the decedent's community and quasi-community property under § 6401(a)–(b), while the decedent's separate property is divided between the spouse and other heirs under § 6401(c) depending on which relatives survive. Property with no taker escheats to the State of California under § 6800. California uses a per capita with representation scheme (§ 240) for issue of unequal degree, NOT classic English per stirpes — this is a tested California-specific divergence.

Elements breakdown

Community and Quasi-Community Property to Surviving Spouse (Cal. Prob. Code § 6401(a)–(b))

All community property and quasi-community property of the decedent passes to the surviving spouse or registered domestic partner.

  • Decedent died intestate as to the property
  • Valid surviving spouse or registered domestic partner
  • Property is community or quasi-community in character
  • Decedent's one-half share passes to surviving spouse

Common examples:

  • Wages earned during marriage held in joint account
  • California real property purchased with community funds
  • Quasi-community property acquired while domiciled in a non-community state but would have been community if acquired in California

Separate Property — Spouse Takes All (Cal. Prob. Code § 6401(c)(1))

The surviving spouse takes the entire separate-property intestate estate when no issue, parent, sibling, or issue of a deceased sibling survive the decedent.

  • Decedent left a surviving spouse
  • Decedent left no surviving issue
  • Decedent left no surviving parent
  • Decedent left no surviving sibling or issue of a deceased sibling

Separate Property — Spouse Takes One-Half (Cal. Prob. Code § 6401(c)(2))

The surviving spouse takes one-half of the separate-property intestate estate when the decedent leaves only one child or the issue of one deceased child, OR leaves no issue but a surviving parent, sibling, or issue of a deceased sibling.

  • Decedent left a surviving spouse
  • Decedent left exactly one child OR issue of one deceased child, OR
  • Decedent left no issue but a parent, sibling, or sibling's issue
  • Remaining one-half passes to the non-spouse heirs

Separate Property — Spouse Takes One-Third (Cal. Prob. Code § 6401(c)(3))

The surviving spouse takes one-third of the separate-property intestate estate when the decedent leaves more than one child, or one child and the issue of one or more deceased children, or the issue of two or more deceased children.

  • Decedent left a surviving spouse
  • Decedent left more than one living child, OR
  • One living child plus issue of one or more deceased children, OR
  • Issue of two or more deceased children
  • Remaining two-thirds passes to issue by representation under § 240

Distribution to Issue (Cal. Prob. Code § 6402(a) and § 240 — California 'Per Capita With Representation')

After any spousal share, the balance passes to the decedent's issue; if issue are of unequal degree, division is made at the first generation with a living taker, with each living member taking one share and each deceased member's share dropping by representation to that member's issue.

  • Identify the nearest generation containing at least one living issue
  • Make as many equal shares as living members at that generation plus deceased members who left issue
  • Each living member of that generation takes one share
  • Each deceased member's share is divided by representation among that member's then-living issue

Heirs Other Than Spouse or Issue (Cal. Prob. Code § 6402(b)–(g))

If no spouse or issue survive, the estate passes in a fixed statutory order: parents, then issue of parents, then grandparents or their issue, then issue of a predeceased spouse, then next of kin, then parents of a predeceased spouse or their issue.

  • No surviving spouse or issue
  • Apply statutory order: parents → issue of parents → grandparents or their issue → issue of predeceased spouse → next of kin → predeceased spouse's parents/issue
  • Within each level, divide per § 240
  • If no taker exists, property escheats to the State under § 6800

Parent-Child Relationship and Adopted/Nonmarital Children (Cal. Prob. Code §§ 6450–6455)

A parent-child relationship for intestate succession exists between a child and the natural or adoptive parent, with adoption generally severing the natural parent-child relationship except as preserved by §§ 6451 and 6454.

  • Natural parent-child relationship exists regardless of marital status of parents
  • Adoption severs natural parent relationship UNLESS § 6451 stepparent/foster-parent exception applies
  • Stepparent exception requires (1) relationship began during minority and continued through joint lifetimes, AND (2) clear and convincing evidence the natural parent or stepparent would have adopted but for legal barrier
  • Equitable adoption may be recognized under § 6455

120-Hour Survival Requirement (Cal. Prob. Code § 6403)

An heir who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for intestate-succession purposes; clear and convincing evidence of survival is required.

  • Claimant must establish survival
  • Survival must exceed 120 hours after decedent's death
  • Proof must be by clear and convincing evidence
  • If not met, claimant treated as having predeceased

Advancements (Cal. Prob. Code § 6409)

A lifetime gift to an heir is treated as an advancement (charged against that heir's intestate share) only if a contemporaneous writing by the decedent or the heir so states.

  • Decedent made lifetime gift to an heir
  • Contemporaneous writing by decedent declaring it an advancement, OR
  • Written acknowledgment by heir that it is an advancement
  • Value charged is value when given or at death per the writing

Slayer Rule (Cal. Prob. Code § 250)

A person who feloniously and intentionally kills the decedent is treated as having predeceased the decedent and forfeits any intestate share.

  • Killing was felonious
  • Killing was intentional
  • Final criminal conviction conclusively establishes the bar; otherwise civil court determines by preponderance
  • Killer treated as predeceasing for distribution purposes

Common patterns and traps

The Quasi-Community Misclassification

California treats quasi-community property — assets acquired while the couple was domiciled outside California that would have been community had they been acquired in California — like community property at death under § 6401(b). Candidates often mislabel it as separate property of the acquiring spouse and then misapply § 6401(c) fractions. The trap is especially common when the decedent earned the asset before the couple moved to California from a common-law state.

An answer choice giving the surviving spouse only one-half or one-third of an out-of-state-earned asset under § 6401(c), instead of 100% under § 6401(b).

The Per Stirpes Substitute

This distractor offers the candidate a clean per-stirpes division (always cut at the children's generation) when § 240 actually requires cutting at the first generation with a living taker. When all of the decedent's children predeceased but left differing numbers of grandchildren, per stirpes and § 240 produce different fractions. California has tested this directly: § 240 gives equal shares to all living grandchildren, while per stirpes would give unequal shares depending on how many siblings each grandchild had.

A choice that distributes the estate in fractions like '1/2 to grandchild from line A and 1/4 each to two grandchildren from line B' when § 240 would give each of the three grandchildren 1/3.

The 120-Hour Phantom Heir

An heir who survives the decedent only briefly is treated as having predeceased the decedent under § 6403 unless survival beyond 120 hours is shown by clear and convincing evidence. Wrong answers honor the short-surviving heir's share and then route it through that heir's own estate, which inflates the wrong people's takings.

A choice that funnels a share through the estate of a child who died 72 hours after the decedent, then passes it to the child's spouse or own beneficiaries.

The Adoption Severance Overreach

Adoption generally severs the natural parent-child relationship for intestate succession under § 6451, but the stepparent/foster-parent exception preserves inheritance rights from the natural parent (and possibly the stepparent) when (1) the relationship began during minority and continued through their joint lifetimes, AND (2) clear and convincing evidence shows adoption was barred only by a legal impediment. Distractors either fully sever in every adoption or fully preserve in every stepparent home.

A choice cutting off all inheritance from a natural parent after a stepparent adoption without examining the § 6451 two-part test.

The Undeclared Advancement

Lifetime gifts are NOT charged against an heir's intestate share unless a contemporaneous writing — by the decedent declaring an advancement, or by the heir acknowledging one — exists under § 6409. Distractors helpfully 'subtract' a generous lifetime gift from a child's share absent any writing, importing common-law hotchpot principles California rejected.

A choice reducing a child's intestate share by the value of a $50,000 down-payment gift made years earlier, with no writing in the facts.

How it works

Start every intestacy problem with a two-step intake. First, characterize each asset as community, quasi-community, or separate — because § 6401 splits along that line. The surviving spouse always sweeps 100% of the community and quasi-community property, so most of a long-married Californian's estate often passes outside § 6402 entirely. Second, look only at the separate-property pile and ask which fractional rule under § 6401(c) applies based on which other relatives survive: nobody else means the spouse takes all; one child or no-issue-but-parent/sibling means one-half to spouse; multiple children or issue of multiple children means one-third to spouse. Then distribute the non-spouse balance by representation under § 240, dividing at the nearest generation with a living member. Finish by applying the gating rules: 120-hour survival under § 6403, the slayer bar under § 250, advancement treatment under § 6409, and the parent-child/adoption rules under §§ 6450–6455.

Worked examples

Worked Example 1

How is Reyes's intestate estate distributed under California law?

  • A Patel takes the entire $1,200,000 home and one-third of the $600,000 brokerage account ($200,000); Ana, Bao, and Carmen each take $133,333 from the brokerage account. ✓ Correct
  • B Patel takes one-half of the home ($600,000) and one-third of the brokerage account ($200,000); Ana, Bao, and Carmen split the remaining $1,000,000 equally.
  • C Patel takes the entire home and one-half of the brokerage account ($300,000); Ana, Bao, and Carmen split $300,000 equally.
  • D Patel takes the entire estate because a surviving spouse is the sole intestate heir whenever the marriage was longer than twenty years.

Why A is correct: The Pasadena home is community property — purchased with Reyes's marital earnings — so under Cal. Prob. Code § 6401(a) Patel takes 100% of the home ($1,200,000). The brokerage account is Reyes's separate property because it came from her mother's inheritance and was never commingled (Cal. Fam. Code § 770). Because Reyes left more than one child, § 6401(c)(3) gives Patel only one-third of the separate-property estate ($200,000), and the remaining two-thirds ($400,000) passes to the three living children by representation under § 240, producing $133,333 each.

Why each wrong choice fails:

  • B: This choice mistakenly treats the community-property home as if it were separate property and applies § 6401(c)(2)'s one-half rule to it. Community property always passes 100% to the surviving spouse under § 6401(a), regardless of how many children survive. (The Quasi-Community Misclassification)
  • C: This choice correctly gives Patel the home but applies the wrong separate-property fraction. With three surviving children, § 6401(c)(3)'s one-third spousal share controls; § 6401(c)(2)'s one-half share applies only when there is exactly one child or only issue of one deceased child.
  • D: There is no California rule giving the surviving spouse the entire estate based on length of marriage. The § 6401(c) fractional rules turn on which other relatives survive, not on duration of marriage.
Worked Example 2

How is Liu's $480,000 estate distributed under California law?

  • A Finn takes $240,000; Gita, Hari, and Indira each take $80,000 (classic per stirpes division at the children's generation).
  • B Finn, Gita, Hari, and Indira each take $120,000 (equal shares at the grandchildren's generation under § 240). ✓ Correct
  • C Finn takes $160,000; Gita, Hari, and Indira each take approximately $106,667 (per capita at each generation under § 247).
  • D The estate escheats to the State of California because both of Liu's children predeceased him.

Why B is correct: Under Cal. Prob. Code § 240, the estate is divided at the nearest generation containing at least one living member. Both children predeceased Liu, so the cut is made at the grandchildren's generation. Because all four grandchildren are living, each receives an equal one-fourth share — $120,000. California's § 240 representation departs from classic per stirpes precisely in this scenario.

Why each wrong choice fails:

  • A: This is classic English per stirpes — always cut at the children's generation. California's default § 240 rejects that approach when no children are alive; the cut is made at the first generation with a living taker, here the grandchildren. (The Per Stirpes Substitute)
  • C: This describes the 'per capita at each generation' scheme of Cal. Prob. Code § 247, which applies only when the will or instrument expressly invokes it. The intestate-succession default is § 240, not § 247.
  • D: Property escheats to the State only when no taker exists under §§ 6402–6402.5 (Cal. Prob. Code § 6800). Here Liu has four living grandchildren who qualify as issue under § 6402(a), so escheat is not on the table.
Worked Example 3

How is Patel's intestate estate distributed under California law?

  • A Jai takes $90,000 (his $150,000 share reduced by the $60,000 advancement); Kiran and Lila each take $75,000; Nina takes $60,000.
  • B Jai takes $150,000; Kiran and Lila each take $75,000; Nina takes nothing. ✓ Correct
  • C Jai takes $100,000; Kiran, Lila, and Nina each take approximately $66,667.
  • D Jai takes $300,000 because as the only living child he excludes the issue of his predeceased sister.

Why B is correct: Patel left issue, so under § 6402(a) the entire separate-property estate passes to issue by representation under § 240; Nina (a sibling) takes nothing because issue cut her out under § 6402(b). The first generation with a living taker is the children's generation (Jai is alive), and Mira left issue, so the estate is divided into two shares — one to Jai ($150,000) and one to Mira's line ($150,000), divided equally between Kiran and Lila ($75,000 each). The $60,000 lifetime gift to Jai is NOT an advancement because § 6409 requires a contemporaneous writing by the decedent or an acknowledgment by the heir, and the facts have neither.

Why each wrong choice fails:

  • A: This choice imports a common-law hotchpot rule and treats the lifetime gift as an advancement. California § 6409 requires a contemporaneous writing — none exists here — so the gift cannot reduce Jai's share. It also wrongly gives Nina a share when issue exclude collateral relatives. (The Undeclared Advancement)
  • C: This choice ignores § 240's representation rule and makes Mira's children share equally with Jai and Nina at a single 'per capita' level. § 240 requires shares at the first generation with a living member, with predeceased members' shares dropping by representation to their issue. (The Per Stirpes Substitute)
  • D: A living child does NOT exclude the issue of a predeceased sibling-child. Under § 240 the share that would have gone to Mira drops to her then-living issue (Kiran and Lila); they take their mother's share by representation alongside Jai.

Memory aid

SPLIT the estate first (Community/QC vs. Separate), then SHARE the separate (All / Half / Third based on who else survives), then SPREAD the non-spouse residue by § 240 representation. Quick fraction check for separate property: 'None = All, One = Half, Many = Third.'

Key distinction

The single sharpest distinction is California § 240 'per capita with representation' versus classic English per stirpes. Under § 240 you cut the pie at the FIRST generation with a living taker — even if the decedent's children are all dead, you go down to the grandchild generation and divide there into equal shares (with deceased grandchildren's shares dropping further by representation). Under classic per stirpes you would always cut at the children's generation regardless of whether any child is alive. Choosing the wrong scheme produces a wrong fraction every time, and bar graders specifically look for whether you invoked § 240.

Summary

Characterize the property first, hand the surviving spouse all community/quasi-community plus the § 6401(c) fraction of separate property, distribute the rest to issue by California § 240 representation, and apply the 120-hour, slayer, advancement, and parent-child gating rules before finalizing shares.

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Frequently asked questions

What is intestate succession on the California Bar?

When a California decedent dies without a valid will (wholly or partially intestate), the estate passes under California Probate Code §§ 6400–6414. The first cut is character-based: the surviving spouse or registered domestic partner takes all of the decedent's community and quasi-community property under § 6401(a)–(b), while the decedent's separate property is divided between the spouse and other heirs under § 6401(c) depending on which relatives survive. Property with no taker escheats to the State of California under § 6800. California uses a per capita with representation scheme (§ 240) for issue of unequal degree, NOT classic English per stirpes — this is a tested California-specific divergence.

How do I practice intestate succession questions?

The fastest way to improve on intestate succession is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the California Bar; start a free 7-day trial to see your sub-topic mastery climb in real time.

What's the most important distinction to remember for intestate succession?

The single sharpest distinction is California § 240 'per capita with representation' versus classic English per stirpes. Under § 240 you cut the pie at the FIRST generation with a living taker — even if the decedent's children are all dead, you go down to the grandchild generation and divide there into equal shares (with deceased grandchildren's shares dropping further by representation). Under classic per stirpes you would always cut at the children's generation regardless of whether any child is alive. Choosing the wrong scheme produces a wrong fraction every time, and bar graders specifically look for whether you invoked § 240.

Is there a memory aid for intestate succession questions?

SPLIT the estate first (Community/QC vs. Separate), then SHARE the separate (All / Half / Third based on who else survives), then SPREAD the non-spouse residue by § 240 representation. Quick fraction check for separate property: 'None = All, One = Half, Many = Third.'

What's a common trap on intestate succession questions?

Forgetting that California § 240 representation is NOT classic per stirpes

What's a common trap on intestate succession questions?

Treating quasi-community property like separate property at death

Related California Bar sub-topics

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