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Intestate Succession and the Effect of Death on Marital Property

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This chapter explains what passes at death without a will, and to whom, under the California Probate Code. It separates probate from nonprobate property, splits community and quasi-community property at death under Probate Code §§ 100 to 102, and applies the 120-hour and simultaneous-death rules. It then computes the surviving spouse’s share (§ 6401) and the other heirs’ shares (§ 6402), divides among descendants under §§ 240, 246 and 247, and closes with four California practice items and a mini-essay.

Obiectivele de învățare

  1. 1.Separate probate property from nonprobate property such as joint tenancy, payable-on-death accounts, life insurance, retirement accounts and revocable trusts.
  2. 2.Apply Probate Code §§ 100 to 102 to community and quasi-community property at death.
  3. 3.Apply the survival rules: simultaneous death (§§ 220 to 224) and the 120-hour rule (§ 6403).
  4. 4.Compute the surviving spouse’s intestate share under § 6401 and the other heirs’ shares under § 6402.
  5. 5.Distribute an estate among descendants under §§ 240, 246 and 247.

1.1 How Wills and Succession is tested and what this chapter covers

Wills and Succession answers one question: when a person dies, who receives the property? California answers it with the Probate Code. A valid will speaks first. If there is no will, or the will fails in whole or in part, a statute decides who takes. This chapter teaches that statute, because every Wills answer can end there.

Wills and Succession is one of the six essay-only subjects; it never appears on the MBE. It was tested on 23 of the last 50 administrations. It is often a crossover: one question mixes Wills with Community Property or with Trusts.

Wills and Succession on the California Bar Exam
ItemWhat the data says
MBE weightNone. Wills and Succession is tested only in the written essays.
Essay frequency23 of the last 50 administrations (46 percent).
Recent crossoversWith Community Property in July 2021, July 2022 and July 2026; with Trusts in February 2025. July 2026 is our unofficial classification.
Top tested rulesOmitted child on 14 of 50 exams; execution requirements 12; holographic wills 12; intestate distribution 8; omitted spouse 5.
Applicable lawCalifornia law. The State Bar’s Content Map lists the Probate Code sections to know, including §§ 100 to 103, 240 and 6400 to 6402.
Exam horizonCurrent format: February 2027, July 2027 and February 2028. NextGen, from July 2028, tests this subject only with provided resources.

Nota

The applicable-law default

The essay instructions tell you to answer under ‘legal theories and principles of general application’ unless the question expressly asks for California law. Wills and Succession calls almost always name California law. When one does, cite the Probate Code by section number.

Five words you need first

This subject uses a small, exact vocabulary, and every later chapter uses these five words. Watch two points. First, an heir takes under the intestacy statute, while a beneficiary takes under a will. Second, ‘issue’ in this subject means descendants, not the legal question in IRAC.

decedent – A person who has died. In this subject, the decedent is the person whose property is being distributed.

intestate – Having no valid will at death. Property that a valid will does not effectively give away also passes by intestate succession.

heir – Anyone, including the surviving spouse, whom the intestacy statute entitles to inherit (Prob. Code § 44). Will takers are called beneficiaries.Cal. Prob. Code § 44

issue – All of a person’s lineal descendants in every generation: children, grandchildren, great-grandchildren and so on (Prob. Code § 50). Not the ‘issue’ of IRAC.Cal. Prob. Code § 50

probate estate – Property that passes under the decedent’s will or by intestacy. Nonprobate assets, such as joint tenancy property, life insurance and trust property, are outside it.

Why intestacy is the backbone

Every Wills answer follows the property through the same four steps. First, remove the assets that pass outside probate, such as joint tenancy property and life insurance. Second, split the marital property in half. Community property is property acquired during marriage while living in California. Quasi-community property is property acquired while living elsewhere that would have been community property here. Third, apply any valid will to the probate estate. Fourth, anything the will does not effectively give away passes by intestacy.

Regulă

The decedent controls only half of the marital property

At death, the surviving spouse owns half of each community asset and half of each of the decedent’s quasi-community assets. The other half belongs to the decedent. A will, or the intestacy statute, can pass only the decedent’s half plus the decedent’s separate property.

Regulă

Intestacy fills every gap

Any part of a decedent’s estate that a valid will does not effectively dispose of passes to the decedent’s heirs under the Probate Code. A person who dies intestate leaves the whole probate estate to the heirs. Section 6401 sets the surviving spouse’s share; § 6402 sets the order of the other heirs.

Intestacy also measures other rights. An omitted child is born or adopted after the decedent signed the last will or codicil (an amendment to a will). That child takes a share equal to the child’s intestate share (§ 21620). This is the most tested rule in the subject. An omitted spouse married the decedent after the last will or codicil. That spouse takes the decedent’s half of the community and quasi-community property, plus the intestate share of separate property, capped at one-half (§ 21610).

The halves explain the frequent crossover with Community Property. Classify each asset before you apply the will or intestacy. July 2026 Question 2 combined quasi-community property at death with an omitted-spouse claim. In a Trusts crossover, first ask whether a funded revocable trust already holds the property, because trust property is outside the probate estate.

What this chapter covers

Section 2 separates probate from nonprobate property. Section 3 splits marital property at death under §§ 100 to 102. Section 4 covers survival. Sections 5 and 6 compute the shares of the spouse, the issue and the other heirs. Section 7 reviews the chapter with four practice questions and one short essay.

Elemente

The Wills and Succession attack order

Work through a Wills essay in this order. Chapter 9 teaches the full method.

  1. 1.Step 1: Remove nonprobate assets: joint tenancy, payable-on-death (POD) accounts, life insurance, retirement accounts and trust property.
  2. 2.Step 2: Classify each asset. Give the surviving spouse one-half of the community and quasi-community property.
  3. 3.Step 3: Validity of the will: capacity, execution, holographic wills, undue influence and fraud.
  4. 4.Step 4: Components: integration, incorporation by reference, acts of independent significance and codicils.
  5. 5.Step 5: Revocation and revival.
  6. 6.Step 6: Construction: lapse and anti-lapse, ademption and abatement.
  7. 7.Step 7: Omitted spouse and omitted child claims.
  8. 8.Step 8: Intestacy for everything a valid will does not effectively give away.

Oricare este suficient.

Sfat pentru examen

Before you apply any will or intestacy rule, list each asset and label it: probate or nonprobate, then community, quasi-community or separate. Split community and quasi-community property in half first, because a wrong split changes every later number. Intestate distribution: 8 of the last 50 exams.

Note cheie

  1. 1.Wills and Succession is essay-only, tested on 23 of the last 50 exams, often as a crossover, almost always under California law.
  2. 2.Follow the attack order: nonprobate assets, marital split, validity, components, revocation, construction, omitted heirs, intestacy.
  3. 3.Remove nonprobate assets and split community and quasi-community property before you apply a will.
  4. 4.Intestacy (Prob. Code §§ 6400 to 6402) governs anything a valid will does not effectively give away.
  5. 5.Learn five exact words: decedent, intestate, heir, issue and probate estate.

1.2 Probate vs nonprobate 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.

Regulă

What passes through probate

At death, title to a decedent’s property passes to the persons named in the will. Property that no will disposes of passes to the heirs under the intestacy rules. Both kinds of transfer are subject to administration in probate, unless another law provides otherwise.

Regulă

Nonprobate transfers need no will formalities

A written instrument that transfers property at death can be valid even though it does not meet the execution rules for wills. Examples are an insurance policy, a bank account agreement, a pension or retirement plan, and a trust. Each instrument follows its own rules instead.

Elemente

The main nonprobate assets

Each asset below passes outside the will and outside intestacy:

  1. 1.Joint tenancy: The surviving joint tenant takes the whole property by right of survivorship.
  2. 2.Community property with right of survivorship: A California form of title for spouses. The surviving spouse takes the decedent’s half without probate.
  3. 3.Joint and POD bank accounts: The balance goes to the surviving account party or to the payable-on-death (POD) payee.
  4. 4.TOD registrations and TOD deeds: Securities registered transfer on death (TOD), and real property under a valid TOD deed, go to the named beneficiary.
  5. 5.Life insurance: Proceeds go to the beneficiary named in the policy. They usually reach the estate only if the estate is named or no beneficiary survives.
  6. 6.Retirement accounts: Individual retirement accounts (IRAs), 401(k) plans and pensions go to the beneficiary named on the plan’s beneficiary form.
  7. 7.Revocable trust: Property held in the trustee’s name passes under the trust terms. The will does not control it.

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.

Regulă

Joint tenancy: survivorship

When a joint tenant dies, the surviving joint tenant owns the whole property. The deceased tenant’s share ends at death, so it never enters the probate estate. A joint tenant may sever the joint tenancy during life, for example by a deed. A will cannot sever it, because the will takes effect only at death.

Regulă

Joint and POD bank accounts

When a party to a joint account dies, the balance belongs to the surviving party. Exception: the estate keeps it if clear and convincing evidence shows a different intent. After the last party to a POD account dies, the balance belongs to the POD payee.

Regulă

Revocable trusts and pour-over wills

A revocable trust avoids probate only for property transferred to it. When the settlor (the trust’s creator) is the trustee, a signed declaration listing the asset can be enough. Property neither transferred nor declared to be trust property passes through probate or a small-estate procedure, even if a pour-over will leaves it to the trust.

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.

Punct cheie

Intestacy governs only the probate estate that a valid will does not dispose of (Prob. Code § 6400). It does not reach assets that pass by survivorship, beneficiary designation or trust.

Exemplu

Sorting the estate

Ana is unmarried. Her valid will leaves ‘all my property’ to her brother, Ben. Ana dies owning four assets. She holds a house in joint tenancy with her friend Cara. She has a bank account payable on death to Cara and a $100,000 life insurance policy naming her son, Dan. She also has $20,000 in a savings account in her own name.

Analiză

Remove the nonprobate assets first. Cara takes the house by right of survivorship and the POD account as payee. Dan takes the insurance proceeds under the policy. Only the $20,000 savings account is probate property, so only that account passes to Ben under the will.

Rezultat

Ben takes $20,000, not ‘all’ of Ana’s property. The will controls only the probate estate.

CAdistincție din California

Survivorship title for spouses

Regula generală (federală / majoritară)

Many common-law states let spouses hold land as tenants by the entirety, a form of joint ownership with survivorship open only to married couples.

California

California does not recognize tenancy by the entirety. Spouses may instead take title as community property with right of survivorship (Civ. Code § 682.1). When one spouse dies, the survivor takes the whole without probate.

If a deed in the facts uses this title, the decedent’s half is a nonprobate asset. It does not pass through the will or intestacy.

Sfat pentru examen

Open the distribution part of your essay by stating that nonprobate assets pass outside the will and outside intestacy. Then name each nonprobate asset, the rule that moves it, and its taker. Only then apply the will and intestacy to what is left.

Sfat pentru examen

If community funds paid for a nonprobate asset, add one sentence: the asset passes outside probate, but the surviving spouse still has a one-half interest in it. Graders reward this crossover point.

Note cheie

  1. 1.The probate estate passes under the will; any part the will does not dispose of passes by intestacy.
  2. 2.Nonprobate transfers take effect by contract, title or trust, and need no will formalities (Prob. Code § 5000).
  3. 3.Main nonprobate assets: joint tenancy, joint and POD accounts, TOD assets, life insurance, retirement accounts and revocable trusts.
  4. 4.A will cannot sever a joint tenancy or change a POD payee (§ 5302(e)); it generally cannot change other beneficiary designations.
  5. 5.Assets left outside a revocable trust are probate property, even with a pour-over will.
  6. 6.Nonprobate is not separate: the surviving spouse keeps a half interest in community-funded assets.

1.3 Death and marital property

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

StatutCA

Cal. Prob. Code § 100

Prob. Code § 100 (paraphrase)

Paraphrase: When a married person dies, the surviving spouse owns one-half of the community property, and the decedent owns the other one-half.
Sursă deschisă

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

Regulă

Property acquired in exchange

Quasi-community property also includes property later acquired in exchange for it: personal property anywhere, and land in California. For example, a California house bought after the move with savings from out-of-state earnings is quasi-community property.

StatutCA

Cal. Prob. Code § 101

Prob. Code § 101 (paraphrase)

Paraphrase: When a married person dies domiciled in California, the surviving spouse owns one-half of the decedent’s quasi-community property, and the decedent owns the other one-half.
Sursă deschisă

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.

Quasi-community property at death and at divorce
QuestionAt death (Prob. Code § 66)At divorce (Fam. Code § 125)
Which land counts?At death (Prob. Code § 66)Only land in CaliforniaAt divorce (Fam. Code § 125)Land anywhere
Whose property counts?At death (Prob. Code § 66)Only the decedent’s propertyAt divorce (Fam. Code § 125)The property of either spouse

Punct cheie

Section 101 splits only the decedent’s quasi-community property. It applies when the acquiring spouse dies first. If the other spouse dies first, that spouse has no share to leave.

Regulă

Recapture of quasi-community property given away

A spouse cannot defeat § 101 by giving quasi-community property away while keeping control of it. If the three conditions below are met, the surviving spouse may act. The recipient must restore one-half of the property, or of its proceeds or value, to the decedent’s estate. That half then belongs to the surviving spouse.

Elemente

Conditions for recapture under § 102

All three must be true:

  1. 1.Domicile: The decedent died domiciled in California.
  2. 2.Transfer: The decedent transferred the property to someone other than the spouse, for less than substantial value, without the spouse’s written consent or joinder.
  3. 3.Control kept: At death the decedent still had its use or income, a power to revoke, or a right of survivorship in it.

Toate elementele necesare.

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.

Regulă

The will controls only the decedent’s share

A will may dispose of three things: the testator’s separate property, the testator’s half of the community property, and the testator’s half of the testator’s quasi-community property. Separate property is fully disposable: the testator may leave all of it to anyone. Without a will, the same shares pass by intestacy (section 5).

CAdistincție din California

No elective share in California

Regula generală (federală / majoritară)

Most states that are not community property states protect a surviving spouse with an elective share. The survivor may reject the will and take a fixed fraction of the estate, often one-third.

California

California has no elective share. Ownership protects the survivor instead. The survivor owns one-half of the community property during marriage and receives one-half of the decedent’s quasi-community property at death (§ 101).

On a California essay, do not write “elective share”. Write the § 100 and § 101 split instead.

Exemplu

The couple from Illinois

Cara and Dan married in Illinois, which is not a community property state, in 2010. Dan’s Illinois salary bought shares worth $200,000, held in his name. In 2018 they moved to San Diego. Their California salaries bought a house worth $600,000. The deed names both spouses and has no joint tenancy or survivorship words. In 2023 Cara inherited $100,000 from her mother. Dan died in 2026, domiciled in California. His valid will, signed in 2020, leaves “all my property” to his sister, Eva.

Analiză

The house was bought with California earnings during marriage, so it is community property. Under § 100, Cara keeps $300,000 and Dan’s half passes to Eva. The shares are quasi-community property: Dan acquired them while domiciled in Illinois. Dan was the acquiring spouse, so § 101 gives Cara $100,000 and Dan’s $100,000 passes to Eva. The inheritance is Cara’s separate property and is not in Dan’s estate.

Rezultat

Eva takes $400,000. Cara keeps $400,000 of the couple’s property and her own $100,000.

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.

Sfat pentru examen

Split before you distribute. First label every asset community, quasi-community or separate. Then give the surviving spouse one-half of the community property and of the decedent’s quasi-community property. Only then apply the will or the intestacy rules to the decedent’s share.

Sfat pentru examen

For each quasi-community asset, write which spouse acquired it. If the non-acquiring spouse dies first, § 101 does not apply, and that spouse’s will cannot reach the asset. This is a common trap.

Note cheie

  1. 1.Before applying a will or intestacy, label each asset community, quasi-community or separate.
  2. 2.§ 100: at death the survivor owns one-half of the community property; the decedent’s half passes by will or intestacy.
  3. 3.§ 101: the survivor owns one-half of the decedent’s quasi-community property if the decedent died domiciled in California.
  4. 4.§ 102: the survivor may recover one-half of quasi-community property the decedent gave away while keeping control.
  5. 5.Separate property is fully disposable. California has no elective share.

1.4 Survival: the 120-hour rule and simultaneous death

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

StatutCA

Cal. Prob. Code § 6403

Prob. Code § 6403 (paraphrase)

Paraphrase: For intestate succession, the law treats a person who does not outlive the decedent by 120 hours as having died first. The same result follows if clear and convincing evidence does not show 120 hours of survival. Exception: the rule does not apply if it would cause the property to escheat to the State.
Sursă deschisă

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.

Regulă

Exception: no escheat

The 120-hour rule does not apply if it would leave no heir, so that the property would escheat (pass to the State of California). Then an heir who outlived the decedent by any period inherits.

Exemplu

Three days is not enough

A widowed mother dies intestate in an accident, leaving a son and a daughter. The son is in the same accident and dies 72 hours later. He leaves a wife and no children; his will leaves everything to her.

Analiză

72 hours is less than 120, so the law treats the son as having died first. He has no issue to take his place. The daughter is the only heir and takes the whole estate. Nothing passes into the son’s estate, so his wife takes nothing.

Rezultat

Had the son lived six days, his estate would take one-half.

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

Regulă

General rule: each person is treated as the survivor

Sometimes ownership of property depends on who died first. If clear and convincing evidence does not show who outlived whom, each person’s own property passes as if that person had survived the other.

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.

Regulă

When §§ 220 to 224 do not apply

These rules yield to a will, trust, deed or insurance policy that deals expressly with simultaneous deaths or requires survival for a stated period, such as 30 days. They also give way to § 103 for spouses’ community property and to § 6403 for intestate heirs.

Regulă

Will gifts: survival, not 120 hours

A beneficiary under a will must outlive the testator to take. If clear and convincing evidence does not show survival, the law treats the beneficiary as not surviving. The 120-hour rule applies only to intestate heirs and to a California statutory will. A will may set its own survival period.

Regulă

Community and quasi-community property

If spouses die and clear and convincing evidence does not show who survived, split the community and quasi-community property in halves. One half passes through each spouse’s estate, as if that spouse had survived.

Regulă

Joint tenancy

If two joint tenants die and clear and convincing evidence does not show who survived, split the property in halves. One half passes through each joint tenant’s estate. Neither estate takes the whole by survivorship.

Regulă

Life insurance

If the insured and the beneficiary die and clear and convincing evidence does not show that the beneficiary survived, the proceeds pass as if the insured survived. They go to the contingent beneficiary or, under the policy terms, to the insured’s estate.

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.

Simultaneous death: who takes each asset
AssetRuleWhere it goesAuthority
Community and quasi-community propertyRuleSplit in halvesWhere it goesOne half through each spouse’s estateAuthorityProb. Code § 103
Joint tenancyRuleSplit in halves; no survivorshipWhere it goesOne half through each joint tenant’s estateAuthorityProb. Code § 223
Life insuranceRuleInsured treated as the survivorWhere it goesContingent beneficiary or the insured’s estate. Community policy with only the estate as alternative: halvesAuthorityProb. Code § 224
Separate propertyRuleOwner treated as the survivorWhere it goesThe owner’s own beneficiaries or heirsAuthorityProb. Code § 6403 in intestacy; § 220 for other transfers

Exemplu

Spouses who die in the same accident

Ana and Ben, spouses domiciled in California, die in the same accident. No evidence shows who died first. Neither has a will. Each has one adult child from an earlier marriage: Ana’s is Cara and Ben’s is Dan. The spouses own a house as joint tenants and a $200,000 community account. Ben also owns inherited shares worth $80,000.

Analiză

No evidence proves that either spouse survived the other by 120 hours, so neither is the other’s heir (§ 6403). Section 223 splits the house in halves, one half through each estate. Section 103 splits the account the same way. The shares are Ben’s separate property. Ana is not his heir, so the shares pass to his only child, Dan (§ 6402(a)).

Rezultat

Cara takes one-half of the house and $100,000. Dan takes one-half of the house, $100,000 and the shares.

CAdistincție din California

Survival of will beneficiaries

Regula generală (federală / majoritară)

A number of states follow the Uniform Probate Code (§ 2-702). It applies the 120-hour survival rule to will beneficiaries and to most other transfers at death, not only to heirs.

California

California applies it only to intestate heirs (§ 6403) and to the California statutory will (§ 6211). Other will beneficiaries need only survive, shown by clear and convincing evidence (§§ 21109, 222).

Test an intestate share for 120 hours; test a will gift for survival alone.

Punct cheie

The 120-hour rule removes an heir. It never takes away a surviving spouse’s own half of the community property, because that half belonged to the spouse all along (§ 100).

Sfat pentru examen

State the standard first: the claimant must prove survival by clear and convincing evidence. Then give each asset its own sentence: community property, joint tenancy, insurance, separate property. Each asset rule earns a point.

Sfat pentru examen

State that California has no age-based survivorship presumption before you split the asset. Then test the evidence in the facts, such as an unsure witness, against the clear and convincing standard.

Note cheie

  1. 1.An heir must outlive the decedent by 120 hours, proved by clear and convincing evidence, or is treated as predeceased (§ 6403).
  2. 2.The 120-hour rule does not apply if it would cause escheat to the State.
  3. 3.If survival cannot be proved, each person’s own property passes as if that person survived (§ 220).
  4. 4.Community property and joint tenancy are split in halves; insurance passes as if the insured survived (§§ 103, 223, 224).
  5. 5.A document that deals with simultaneous death or sets a survival period controls (§ 221).
  6. 6.Will beneficiaries need only survive, shown by clear and convincing evidence (§§ 21109, 222).

1.5 The surviving spouse’s share

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.

Regulă

Who is a surviving spouse

A person is a surviving spouse only if the marriage existed at death. A divorced spouse, or one whose marriage was annulled, does not qualify. A spouse in a pending divorce still qualifies. Exception: the spouse does not qualify if a court order already ended all marital property rights. The spouse must also survive by 120 hours (section 4).

StatutCA

Cal. Prob. Code § 6401

Prob. Code § 6401 (paraphrase)

Paraphrase: Under subdivision (a), the surviving spouse takes the decedent’s one-half of the community property under § 100. Under subdivision (b), the spouse takes the decedent’s one-half of the quasi-community property under § 101. Under subdivision (c), the spouse takes all, one-half or one-third of the separate property, depending on which relatives survive.
Sursă deschisă

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.

Elemente

The separate property share under § 6401(c)

Check who survives the decedent, in this order. Stop at the first line that fits.

  1. 1.One-third: Two or more child lines survive. A child line is a living child, or a deceased child who left surviving issue.
  2. 2.One-half: Exactly one child line survives: one child, or the issue of one deceased child.
  3. 3.One-half: No issue survive, but a parent survives, or a brother, sister, niece, nephew or other issue of a parent.
  4. 4.All: No issue, no parent and no brother or sister (or their issue) survive.

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.

The surviving spouse’s share by family configuration
Who else survives the decedentSpouse’s share of community and quasi-community propertySpouse’s share of separate propertyThe rest of the separate property goes to
Two or more child linesSpouse’s share of community and quasi-community propertyAllSpouse’s share of separate propertyOne-thirdThe rest of the separate property goes toThe issue (§ 6402(a)), shared under § 240
Exactly one child lineSpouse’s share of community and quasi-community propertyAllSpouse’s share of separate propertyOne-halfThe rest of the separate property goes toThat child, or the issue of that deceased child (§ 6402(a))
No issue; one or both parentsSpouse’s share of community and quasi-community propertyAllSpouse’s share of separate propertyOne-halfThe rest of the separate property goes toThe parent or parents equally (§ 6402(b))
No issue or parent; a brother, sister or their issueSpouse’s share of community and quasi-community propertyAllSpouse’s share of separate propertyOne-halfThe rest of the separate property goes toThe issue of the parents (§ 6402(c))
None of the above (for example, only a grandparent or a cousin)Spouse’s share of community and quasi-community propertyAllSpouse’s share of separate propertyAllThe rest of the separate property goes toNobody else

CAdistincție din California

Children of both spouses

Regula generală (federală / majoritară)

The Uniform Probate Code (§ 2-102) gives the surviving spouse the whole intestate estate in one common case. Every descendant of the decedent is also the spouse’s descendant, and the spouse has no other descendants.

California

Every child line reduces the spouse’s share of separate property, even a child of both spouses. One child line leaves the spouse one-half; two or more leave one-third (§ 6401(c)).

On a California essay, never give the spouse all the separate property because the children are also the spouse’s children. Count every child line.

Regulă

Registered domestic partners

A surviving registered domestic partner takes exactly the share of a surviving spouse. Registered partners have the same rights and duties as spouses under all sources of California law, including intestate succession. The community property, quasi-community property and separate property rules apply unchanged.

Regulă

Putative spouses

A putative spouse believed in good faith that a void or voidable marriage was valid. At death, a putative spouse inherits as a surviving spouse, including a share of the decedent’s 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).

Exemplu

Computing the spouse’s share

Ana dies without a will. She leaves her husband, Ben, and two children, Cara and Dan. A third child, Eli, died years earlier with no children. Ana’s mother also survives. Ana and Ben own a house worth $900,000, bought with earnings during the marriage. Ana also owns $600,000 in savings that she inherited from her father.

Analiză

The house is community property. Ben already owns one-half ($450,000) under § 100 and inherits Ana’s half ($450,000) under § 6401(a). The savings are separate property. Cara and Dan are two child lines. Eli is not a line, because he left no issue. Ben therefore takes one-third of the savings ($200,000). Ana’s mother takes nothing, because issue survive.

Rezultat

Ben ends with the whole house ($900,000) and $200,000 of the savings. Cara and Dan share the other $400,000 equally, so each takes $200,000.

Exemplu

Variation: no children

Same facts, but Ana never had children. Her mother has died. Her sister, Fay, and her grandfather survive.

Analiză

Ben still ends with the whole house. For the savings, no issue or parent survives, but Fay is issue of Ana’s parents. Ben takes one-half ($300,000) and Fay takes the other half (§ 6402(c)). The grandfather takes nothing.

Sfat pentru examen

Show the arithmetic in three steps. First, split community and quasi-community property in half (§§ 100 to 101). Second, give the decedent’s half to the spouse (§ 6401). Third, apply the separate property tier and name who takes the rest (§ 6402).

Sfat pentru examen

Name the tier and the relatives that trigger it. If no issue survive, say whether a parent or the sibling line survives; grandparents never reduce the share. For example: ‘Two child lines survive, so the spouse takes one-third of the separate property (§ 6401(c)).’

Note cheie

  1. 1.In intestacy the spouse takes the decedent’s half of community and quasi-community property, so the spouse ends with all of it.
  2. 2.Separate property: one-third if two or more child lines survive; one-half if exactly one child line survives.
  3. 3.No issue: one-half if a parent or the sibling line survives; otherwise the spouse takes all the separate property.
  4. 4.Grandparents, aunts, uncles and cousins never reduce the spouse’s share.
  5. 5.Registered domestic partners take a spouse’s share (Fam. Code § 297.5); putative spouses inherit too; unmarried cohabitants do not.
  6. 6.A divorced spouse is not a surviving spouse; a spouse in a pending divorce still is, unless an order ended property rights (§ 78).

1.6 Other heirs and how shares are divided

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.

StatutCA

Cal. Prob. Code § 6402

Prob. Code § 6402 (paraphrase)

Paraphrase: Whatever the surviving spouse does not take passes to the first class in the list below that has a living member. In the issue classes, relatives of the same generation share equally, and relatives of different generations share under § 240. For next of kin, those who claim through the nearest ancestor come first (§ 6402(f)).
Sursă deschisă

Elemente

The order of heirs (§ 6402)

Stop at the first class with a living member.

  1. 1.First: Issue: children, grandchildren and more remote descendants.
  2. 2.Second: Parents, equally.
  3. 3.Third: Issue of the parents: brothers, sisters and their descendants.
  4. 4.Fourth: Grandparents; if none survives, their issue, such as aunts, uncles and cousins.
  5. 5.Fifth: Issue of a predeceased spouse (one who died while married to the decedent), such as stepchildren.
  6. 6.Sixth: Next of kin, the closest in degree.
  7. 7.Seventh: Parents of a predeceased spouse, or their issue.
  8. 8.Last: Escheat: the estate passes to the State of California (§ 6404).

Oricare este suficient.

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).

Regulă

Intestacy uses § 240

Divide at the nearest generation of issue that has a living member. Each living member takes one share. Each dead member who left living issue also takes one share, which passes down to that member’s issue in the same way.

Regulă

A will or trust may choose another method

In a will or trust, “per stirpes” and “by (right of) representation” select the § 246 method. “Per capita at each generation” selects the § 247 method. A gift to “issue” with no stated method uses § 240.

Three ways to divide among issue
Question§ 240 (intestacy)§ 246 (strict per stirpes)§ 247 (per capita at each generation)
Where is the first division?§ 240 (intestacy)Nearest generation with a living member§ 246 (strict per stirpes)Always at the children, even if all are dead§ 247 (per capita at each generation)Nearest generation with a living member
Where does a dead member’s share go?§ 240 (intestacy)Down that member’s own line§ 246 (strict per stirpes)Down that member’s own line§ 247 (per capita at each generation)All dead members’ shares are pooled and split equally at the next generation

Exemplu

One family tree, three answers

Dana dies intestate and unmarried, leaving $1,200,000. Her children, A and B, died before her. A left one child, A-1. B left three children: B-1, who is alive, and B-2 and B-3, who also died before Dana. B-2 left one child, B-2-1. B-3 left two, B-3-1 and B-3-2.

Analiză

Sections 240 and 247 divide at the grandchildren: four shares, for A-1, B-1, B-2 and B-3. Section 246 divides at the children: one-half per line. Section 247 then pools the B-2 and B-3 shares for their three children.

Shares of Dana’s $1,200,000 estate
Heir§ 240§ 246§ 247
A-1§ 240$300,000 (1/4)§ 246$600,000 (1/2)§ 247$300,000 (1/4)
B-1§ 240$300,000 (1/4)§ 246$200,000 (1/6)§ 247$300,000 (1/4)
B-2-1§ 240$300,000 (1/4)§ 246$200,000 (1/6)§ 247$200,000 (1/6)
B-3-1§ 240$150,000 (1/8)§ 246$100,000 (1/12)§ 247$200,000 (1/6)
B-3-2§ 240$150,000 (1/8)§ 246$100,000 (1/12)§ 247$200,000 (1/6)

Sfat pentru examen

Intestacy always uses § 240. A common wrong answer divides at the children when all of them are dead. That is § 246, which applies only when a will or trust chooses it.

Who counts as a relative

Regulă

Half-bloods inherit equally

A half-blood relative, such as a half-sibling with one shared parent, takes the same share as a whole-blood relative. The only exception involves adoption (§ 6451).

Regulă

Adopted children

An adopted child inherits from and through the adopting parents, like a child by birth. Adoption normally ends inheritance from a birth parent. Exception: that link survives if both conditions below are met.

Elemente

When an adopted child still inherits from a birth parent

  1. 1.They lived together as parent and child, or the parent, married to or living with the other parent at conception, died before birth.
  2. 2.The adoption was by a birth parent’s spouse (a stepparent adoption) or after a birth parent’s death.

Toate elementele necesare.

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)).

Regulă

Stepchildren and foster children

A stepchild or foster child inherits from that parent only if two conditions are met. First, the relationship began during the child’s minority and lasted for their joint lifetimes. Second, clear and convincing evidence shows the parent would have adopted the child but for a legal barrier that lasted until the parent’s death.

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

Regulă

An advancement needs a writing

A lifetime gift to an heir is an advancement only if there is a writing. Either the decedent declared it in a writing made at the time of the gift, or the heir acknowledged it in writing.

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.

Exemplu

Adding the advancement back

Lee dies intestate and unmarried, leaving $300,000 and two children, Max and Nora. Years earlier, Lee gave Max $60,000 with a signed note, made that day, calling it an advancement against his share.

Analiză

Add the gift back: $360,000, so each share is $180,000. Max already has $60,000, so he takes $120,000 more. Nora takes $180,000.

Rezultat

Without the note, each child takes $150,000.

Note cheie

  1. 1.Heirs take in the § 6402 order; the first class with a living member excludes every later class.
  2. 2.With no heir, the estate escheats to the State of California (§ 6404).
  3. 3.Intestacy divides at the first generation with a living member (§ 240); “per stirpes” in a will means § 246.
  4. 4.Half-bloods take equally (§ 6406); adopted children inherit like children by birth (§§ 6450, 6451).
  5. 5.Stepchildren inherit only under § 6454; advancements need a writing (§ 6409).

1.7 Review

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.

Regulă

The statutes behind the questions

At death, one-half of community and quasi-community property belongs to the surviving spouse (§§ 100–101). The spouse inherits the decedent’s half and a share of separate property (§ 6401). The rest passes in the § 6402 order, and descendants share under § 240. Every heir must survive by 120 hours (§ 6403). Simultaneous deaths follow §§ 220–224.

The attack order for a death-and-intestacy question
Step (in order)What to doAuthority
Remove nonprobate assetsWhat to doTake out joint tenancy property, payable-on-death accounts, life insurance and trust assets. Intestacy reaches only what is left.AuthoritySection 2 of this chapter
Test survivalWhat to doEach heir must survive by 120 hours, shown by clear and convincing evidence. If the order of deaths cannot be proved, split the property.AuthorityProb. Code §§ 6403, 220–224
Classify each assetWhat to doLabel it community, quasi-community or separate property. Look at when and how it was acquired, not only at whose name is on the title.AuthorityFam. Code §§ 760, 770; Prob. Code § 66
Split marital propertyWhat to doOne-half of community and quasi-community property already belongs to the surviving spouse. Only the decedent’s half enters the estate.AuthorityProb. Code §§ 100–101
Give the spouse’s shareWhat to doThe decedent’s half of community and quasi-community property, plus all, one-half or one-third of the separate property.AuthorityProb. Code § 6401
Pass the restWhat to doIssue first, then parents, then issue of parents, then more remote relatives. Divide among descendants at the first generation with a living member.AuthorityProb. Code §§ 6402, 240
The spouse’s share of separate property (§ 6401(c))
The decedent also leavesSpouse’s shareThe rest goes to
No issue, no parent, no sibling and no issue of a siblingSpouse’s shareAllThe rest goes toNobody; the spouse takes everything
Only one child, or the issue of one deceased childSpouse’s shareOne-halfThe rest goes toThat child, or that child’s issue
No issue, but a parent or the issue of a parentSpouse’s shareOne-halfThe rest goes toThe parents; if none, the issue of the parents
More than one child; one child plus issue of a deceased child; or issue of two or more deceased childrenSpouse’s shareOne-thirdThe rest goes toThe issue (§ 6402(a)), shared under § 240

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.

Sfat pentru examen

Before you apply intestacy, write one sentence per asset that splits community and quasi-community property in half. Then state the spouse’s share and each heir’s share in dollars. Graders look for the split and the numbers.

Punct cheie

Answer each question in one sentence of your own before you read the options. The essay asks you to recall the rule, not to recognize it.

Practică · MBE

Practice 1.1 (California). A wife domiciled in California died without a will. She was survived by her husband and their one adult son. Her parents and her sister are also alive. At her death she held $400,000 in a brokerage account. The account was funded only with both spouses’ salaries earned in California during the marriage. It was in her name alone and had no beneficiary designation. She also held $300,000 in a savings account. She had inherited that money from her aunt during the marriage and kept it apart from all other funds. She had no debts. Under California law, how should her property be distributed?
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Răspuns: C

The husband takes $550,000 and the son takes $150,000. The account holds salary earned in California during the marriage, so it is community property whatever the title. Under Prob. Code § 100, one-half ($200,000) already belongs to the husband. The wife’s half ($200,000) passes to him under § 6401(a). The inheritance is the wife’s separate property. Because she left only one child, the husband takes one-half of it under § 6401(c). The son takes the other $150,000 under § 6402(a). The parents and the sister take nothing, because a descendant survived.
Correct answer: C. Option A assumes that a spouse always takes everything. The spouse takes all the separate property only when the decedent leaves no issue, parent, sibling or issue of a sibling. Option B uses the one-third share. That share applies only when two or more child lines survive; here there is one child. Option D gives the son one-half of the community property. A child never takes the surviving spouse’s own half, and the decedent’s half goes to the spouse under § 6401(a). Exam lesson: split the community property first, then apply § 6401 to each kind of property separately.

Practică · MBE

Practice 1.2 (California). A widower domiciled in California died without a will. His estate is $600,000 of separate property. He had three children, and all three died before him. The first child left one child. The second child left two children. The third child left three children. All six grandchildren survived the widower by more than 120 hours. He left no other descendants. Under California law, how should the estate be distributed?
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Răspuns: A

Each grandchild takes $100,000. Under Prob. Code § 6402(a), the estate passes to the decedent’s issue. Issue of the same degree take equally, and issue of unequal degree take under § 240. Under § 240, the estate is divided at the nearest generation that has a living member. Here, no child survived, so the division happens at the grandchildren’s generation. There are six living grandchildren and no deceased grandchild who left issue. So the estate is divided into six equal shares of $100,000.
Correct answer: A. Option B divides the estate at the children’s generation. That is strict per stirpes under § 246, which applies only when a will, trust or other instrument calls for it; intestacy uses § 240. Option C assumes that equal shares require § 247. Here § 240 and § 247 give the same result, because all the takers are in one generation and all are alive. Option D assumes that a grandchild needs a surviving parent to inherit. The issue of a deceased child take that child’s place, and the State takes only when no heir qualifies (§ 6404). Exam lesson: find the first generation with a living member, count its shares, and divide there.

Practică · MBE

Practice 1.3 (California). A husband and wife, both domiciled in California, died in the same accident. The wife was 10 years younger than the husband. A witness testified that she believed the husband was alive for a few minutes after the accident. On cross-examination, the witness admitted that she was not sure. The court found no clear and convincing evidence of which spouse died first. The spouses owned their house as joint tenants. Neither spouse had a will. Each spouse left one adult child from an earlier marriage and no other descendants. Under California law, how should the house be distributed?
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Răspuns: B

Each child receives one-half of the house. Under Prob. Code § 223, if joint tenants die and it cannot be shown by clear and convincing evidence that one survived the other, the property is divided into equal shares. Each share is then distributed as if its owner had survived. Here, the court found no clear and convincing evidence, so one-half passes through each spouse’s estate. Under § 6403, no clear and convincing evidence shows that either spouse survived the other by 120 hours, so neither is the other’s heir. Each half therefore passes to that spouse’s only child under § 6402(a).
Correct answer: B. Option A treats uncertain testimony as enough. The standard is clear and convincing evidence, and the witness admitted that she was not sure. Option C relies on a presumption based on age; California has no such presumption. Option D places the burden of proof on one side only. When survival cannot be proved either way, § 223 treats both joint tenants in the same way. The same half-and-half result applies to community property of spouses who die together (§ 103). Exam lesson: name the standard, test the evidence against it, then split the asset.

Practică · MBE

Practice 1.4 (California). A woman domiciled in California died without a will. She had never married and had no children or other descendants. Her father had died years earlier. She was survived by her mother and by her only brother. The mother died 72 hours after the woman. The times of both deaths are recorded and not in dispute. The mother’s valid will leaves her entire estate to a charity. The charity claims the woman’s estate through the mother’s estate. The brother claims the whole estate for himself. Under California law, who is entitled to the woman’s estate?
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Răspuns: D

The brother takes the whole estate. Under Prob. Code § 6403, an heir who does not survive the decedent by 120 hours is treated as having died first. Survival for 120 hours must be proved by clear and convincing evidence. Here, the mother died 72 hours after the woman, so she is treated as predeceased. The woman therefore left no spouse, no issue and no surviving parent. Under § 6402(c), the estate passes to the issue of her parents, and the brother is the only one. The 120-hour rule does not apply if it would cause escheat, but the brother’s claim means there is no escheat.
Correct answer: D. Option A assumes that surviving by any length of time is enough. For intestate heirs, California requires survival by 120 hours. Option B assumes that a parent and a sibling share the estate. Under § 6402, a surviving parent takes ahead of siblings, so the brother would take nothing if the mother had qualified. Option C reverses the scope of the rule. Section 6403 is itself an intestacy rule, and it decides this case. Exam lesson: before you compute any share, test each heir for 120-hour survival and remove those who fail.

Practică · MBE

Practice 1.5 (mini-essay, 15 minutes). A husband and wife married in Ohio in 2008. Ohio is not a community property state. While they lived in Ohio, the husband worked as an engineer and saved most of his salary. In 2019 the couple moved to Sacramento, intending to stay. That year the husband used his Ohio savings to buy a house, now worth $500,000, titled in his name alone. After the move, he used his California salary to buy shares of stock, now worth $80,000. The shares are in a brokerage account in his name with no beneficiary designation. In 2022 he inherited $90,000 from his mother and kept it in a savings account in his own name. The husband died in 2026 without a will. He was survived by his wife and their two adult children. All of them outlived him by more than 120 hours. The husband made no lifetime gifts. Discuss how the husband’s property should be distributed. Then choose the best conclusion below and compare your answer with the model answer.
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Răspuns: B

Option B is the best conclusion; the model answer shows the full reasoning. The house is quasi-community property, because it was bought with savings from salary earned in Ohio during the marriage (Prob. Code § 66(b)). The stock is community property. The inheritance is separate property. Under Prob. Code §§ 100 and 101, the wife already owns one-half of the house and one-half of the stock. She inherits the husband’s halves under § 6401(a) and (b). She also takes one-third of the separate property under § 6401(c), because two children survive. The children share the other two-thirds of the savings equally under § 6402(a).
Correct answer: B. Option A gives the wife only one-half of each asset. In fact she already owns one-half of the community and quasi-community property, and she inherits the husband’s half as well. Option C treats the house as separate property because the money was earned in Ohio. Property that would have been community property in California is quasi-community property, and it is split at death. Option D uses the one-half share of separate property. That share applies only when one child line survives; here two children survive. Model answer (about 350 words). Classification. The issue is whether each asset is community, quasi-community or separate property. Under Fam. Code § 760, property acquired during marriage while domiciled in California is community property. Property acquired while domiciled elsewhere that would have been community property here is quasi-community property (Prob. Code § 66(a)). Property later acquired in exchange for it, including California land, is also quasi-community property (§ 66(b)). Gifts and inheritances are separate property (Fam. Code § 770). Here, the husband’s Ohio savings came from salary earned during the marriage, so they were quasi-community property. He bought the California house in exchange for those savings, so the house is quasi-community property under § 66(b). The stock was bought with California salary during the marriage, so it is community property. The $90,000 is an inheritance, so it is separate property. Title in the husband’s name alone does not change any of these results. The wife’s own half. Under Prob. Code §§ 100 and 101, at death one-half of the community and quasi-community property belongs to the surviving spouse. Section 101 applies only if the decedent died domiciled in California. Here, the husband moved to Sacramento intending to stay, so he died domiciled in California and § 101 applies. So the wife already owns $250,000 of the house and $40,000 of the stock. Only the husband’s halves, together with the savings, form his estate. The wife’s inheritance. Under § 6401(a) and (b), the surviving spouse inherits the decedent’s half of community and quasi-community property. For separate property, the spouse takes one-third if the decedent leaves more than one child (§ 6401(c)). Here, the wife inherits the husband’s halves of the house and the stock, so she now holds both assets in full. She also takes one-third of the savings: $30,000. The children’s shares. Under § 6402(a), the rest passes to the decedent’s issue, equally when they are of the same degree. Here, the two children share $60,000, so each child takes $30,000. Conclusion. Therefore, the wife receives the whole house ($500,000), the whole stock account ($80,000) and $30,000 of the savings. Each child receives $30,000.

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

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

– 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).

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

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

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

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

– 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.

– 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).

Note cheie

Chapter summary

  1. 1.Intestacy reaches only the probate estate. Joint tenancy, payable-on-death accounts, life insurance and trust assets pass outside it.
  2. 2.At death, one-half of community and quasi-community property already belongs to the surviving spouse (§§ 100–101). The decedent controls only the other half.
  3. 3.The spouse inherits the decedent’s half of community and quasi-community property, plus all, one-half or one-third of separate property (§ 6401).
  4. 4.An heir must survive by 120 hours, shown by clear and convincing evidence (§ 6403). Without that proof, the heir is treated as predeceased.
  5. 5.Simultaneous death: if survival cannot be proved, each person’s property passes as if that person survived; joint tenancy splits in half (§§ 220, 223).
  6. 6.The rest passes in the § 6402 order. Descendants share at the first generation with a living member (§ 240); the State takes last.

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