Intestate Succession and the Effect of Death on Marital Property

Before you apply a will or the intestacy rules, ask one question first: which property is part of the estate at all? Many assets pass at death by contract, by the form of title or by a trust. Neither the will nor the intestacy rules control them. If you send such an asset through the will or through intestacy, the whole distribution goes wrong.

nonprobate transfer – A transfer at death that takes effect under a contract, a form of title or a trust, so the property passes outside the will and outside probate.Cal. Prob. Code § 5000

right of survivorship – The feature of joint tenancy and similar titles: when one owner dies, that owner’s share ends and the surviving owner holds the whole property.

Probate is the court-supervised process that settles a decedent’s estate. A personal representative collects the probate estate, pays the debts and distributes the rest to the persons named in the will or to the heirs. A nonprobate transfer skips this process. The property goes directly to the surviving owner, the named beneficiary or the trust beneficiaries.

Why? The decedent already gave instructions for death in another document: the deed, the account contract, the policy or the trust. A will generally cannot change those instructions, unless the instrument itself allows it. For bank accounts the rule is absolute: a will cannot change a POD payee or an account survivorship right (§ 5302(e)). So a will that leaves ‘my savings account’ to a brother does not defeat a POD designation naming a daughter.

One warning for married decedents: nonprobate does not mean separate property. If community earnings paid for a life insurance policy or a POD account, the surviving spouse still has a one-half interest in it. The decedent cannot give that half to a third party without the spouse’s written consent. Section 3 explains the half-and-half rule; Chapter 8 covers the remedies.

Wills and Community Property are often tested together in one essay. Before you ask who takes under a will or by intestacy, ask a first question: what did the decedent own at death? A married decedent did not own everything the couple held. The surviving spouse already owned one-half of the community property. Only the decedent’s share passes by will or by intestacy.

community property – Property, other than separate property, that either spouse acquires during the marriage while domiciled in California. Each spouse owns an equal one-half interest.Cal. Fam. Code §§ 760, 751

Section 100 does not create a new right. During marriage each spouse already owns a present, equal one-half interest in the community property (Fam. Code § 751). Death confirms that ownership. California divides the community item by item: the decedent owns one-half of each community asset, unless the spouses agreed in writing to a different division (§ 100(b)). Courts presume that a testator (a person who makes a will) gives away only the testator’s own half.

Exception: a will may clearly try to give away a whole community asset, including the survivor’s half. If the will also gives the survivor a benefit, the survivor must make an election (a choice). The survivor may accept the will gift and let the will control the survivor’s half. Or the survivor may keep that half and give up the will gift.

quasi-community property – Property the decedent acquired while domiciled outside California that would have been community property if the decedent had then lived in California. It covers personal property anywhere and real property in California.Cal. Prob. Code § 66

quasi-community property protects spouses who move to California. In most other states, each spouse owns what that spouse earns. Without § 101, the earning spouse could leave all of those earnings to someone else. Section 101 treats them like community property. Two limits apply. The decedent must die domiciled in California. And real property located in another state is not included; the law of that state governs it.

The classic case is a revocable trust. A spouse earns stock in New York, moves to California, and puts the stock into a revocable trust for a sibling. At that spouse’s death, the surviving spouse may recover one-half of the stock. Exception: life insurance, accident insurance, joint annuities and pensions payable to someone other than the surviving spouse are never recaptured (§ 102(b)). Community personal property has a similar protection: under Family Code § 1100(b), a spouse may not give it away without the other spouse’s written consent.

Change one fact: Cara dies first, with a will leaving everything to her brother. Her will controls her half of the house and her $100,000 inheritance. It does not reach the Illinois shares. Dan acquired them, so they are not Cara’s quasi-community property. Dan keeps all $200,000 of the shares.

Intestacy gives property only to people who are alive when the decedent dies. So every distribution starts with one question: who survived? The answer is hard when two relatives die in the same accident, or when an heir dies days later. California answers with two sets of rules.

clear and convincing evidence – A standard of proof higher than a preponderance of the evidence. The evidence must show that the fact is highly probable.

120-hour rule – An heir must outlive the decedent by at least 120 hours (five days) to inherit by intestacy.Cal. Prob. Code § 6403

Apply the 120-hour rule in three steps. First, measure the time between the two deaths; 120 hours is exactly five days. Second, the person who claims through the heir must prove survival by clear and convincing evidence. Third, if the proof fails, identify the heirs as if that heir had died first. The rule stops property from passing twice, first into the heir’s estate and then to the heir’s family.

When the order of death cannot be proved

simultaneous death – Deaths where clear and convincing evidence does not show which person outlived the other. The deaths need not happen at the same moment.Cal. Prob. Code § 220

In a simultaneous death, neither estate inherits from the other. Each person’s separate property passes under that person’s own will, or to that person’s own heirs. Shared property follows the special rules below.

Exception: the beneficiary is the insured’s spouse, the policy is community or quasi-community property, and the only alternative beneficiary is the insured’s estate. Then § 103 splits the proceeds in halves, like any other community asset. So check which funds paid the premiums.

After you split the marital property in half (section 3) and confirm who survived (section 4), compute the heirs’ shares. The surviving spouse comes first. Probate Code § 6401 fixes the spouse’s share, and § 6402 sends the rest to other relatives (section 6). The share covers only property that no valid will disposes of. It depends on the character of the property and the family left behind.

Community property and the decedent’s quasi-community property are simple. The surviving spouse already owns one-half under §§ 100 and 101. That half is not part of the decedent’s estate at all. Section 6401 then gives the spouse the decedent’s half as well. In intestacy, therefore, the surviving spouse ends with all of this property. Children, parents and siblings take none of it.

Separate property is where the family matters. Count child lines, not grandchildren. A child who survives is one line. A child who died before the decedent but left surviving issue is also one line. A child who died with no issue is not a line at all. One line gives the spouse one-half. Two or more lines give the spouse one-third.

If no issue survive, look up the family tree. A surviving parent cuts the spouse’s share to one-half. So does a brother, a sister, or any issue of a brother or sister. Relatives further out do not count. Grandparents, aunts, uncles and cousins never reduce the spouse’s share. A spouse who survives with only a grandmother takes all the separate property.

A couple who lived together for years but never married or registered are unmarried cohabitants. The survivor is not an heir and takes nothing in intestacy. The survivor may still have a contract claim against the estate (Community Property chapter 1).

Section 5 covered the surviving spouse. Probate Code § 6402 sends everything else to relatives in a fixed order. Find the first class with a living member, then divide within that class.

A closer class excludes every later class: one living grandchild cuts out the parents and siblings. The fifth and seventh classes reach a predeceased spouse’s family, so a stepchild who was never adopted can inherit if no one closer survives. Also watch § 6402.5. If the decedent leaves no spouse or issue, property that came from a predeceased spouse can pass to that spouse’s family. The limit is 15 years after that spouse’s death for real property and 5 years for personal property.

representation – The rule that the living issue of a dead relative take, together, the share that relative would have taken.Cal. Prob. Code § 240

When heirs are of different generations, such as a living child and a dead child’s children, the dead child’s children take by representation. California has three methods for this. Two carry Latin names: per stirpes (by family line) and per capita (by head).

Who counts as a relative

Example: Ana lived with her father until he died. Her mother then married Ben, who adopted Ana. Ana can still inherit from her father’s parents. But her father’s relatives usually cannot inherit from Ana (§ 6451(b)).

A stepparent who could have adopted but chose not to does not qualify. The legal barrier must last until the stepparent’s death (Estate of Joseph (1998) 17 Cal.4th 203). A birth parent’s refusal to consent ends when the child becomes an adult, because an adult can be adopted without it. So § 6454 usually helps only a child who was still a minor when the stepparent died. If § 6454 is met, the child’s issue can inherit too. The court-made doctrine of equitable adoption also survives (§ 6455).

Advancements

advancement – A lifetime gift to an heir that counts against that heir’s intestate share.Cal. Prob. Code § 6409

Value an advancement when the heir received it or at death, whichever came first. Exception: a stated value controls if it appears in the decedent’s writing made at the time of the gift, or in the heir’s acknowledgment made at that time. If the heir dies before the decedent, the gift does not count against the heir’s issue unless the writing says so.

This review tests the five skills of the chapter. You must separate probate from nonprobate property and split marital property at death. You must also apply the survival rules, compute the surviving spouse’s share and divide the rest among the other heirs. Items 1.1 to 1.4 are California multiple-choice questions. Item 1.5 is a 15-minute essay drill. Answer each item in writing before you open the explanation.

How to use the essay drill. Set a timer for 15 minutes and write one heading per asset. Follow the attack order above and show every number. The drill uses only personal property and California land. Under Prob. Code § 66, quasi-community property covers personal property wherever it is located, but land only if it is in California. If a fact pattern includes land in another state, flag it: the law of that state governs it.

joint tenancy – Co-ownership with a right of survivorship: when one joint tenant dies, the others own the whole property outside probate.

per stirpes – Division among descendants that always starts at the children’s generation. California uses it only when a will or trust calls for it (§ 246).

escheat – The passing of property to the State when no will disposes of it and no heir, including a predeceased spouse’s family, can take (§ 6404).

probate – The court-supervised process that collects a decedent’s probate estate, pays the debts and distributes the rest under the will or by intestacy.

beneficiary – A person who takes property under a will, trust, insurance policy or account designation. A person who takes by intestacy is an heir.

testator – A person who makes a will. The will can dispose only of the testator’s own property.

payable-on-death account – A bank account that passes at the owner’s death directly to a named payee, outside the will and outside probate.

putative spouse – A person who believed in good faith that a void or voidable marriage was valid. In intestacy, a putative spouse takes as a surviving spouse.

half-blood – A relative connected through only one common parent, such as a half-brother. In California, half-bloods inherit the same share as whole-blood relatives (§ 6406).