When someone dies without a will in California, Probate Code 6402 sets the order in which relatives inherit whatever does not pass to a surviving spouse. The statute runs down a fixed ladder: the decedent’s children and their descendants first, then parents, then siblings and their descendants, then grandparents and their descendants, then the children of a predeceased spouse, then next of kin by degree, and finally the parents (or their descendants) of a predeceased spouse. If none of those tiers turns up a living heir, the estate escheats to the State of California.1California Legislative Information. California Probate Code 6402
The Spouse’s Share Is Taken Out First
Section 6402 only reaches the portion of the estate that Section 6401 has not already handed to a surviving spouse, so it helps to know what’s left before applying the ladder.
Community property and quasi-community property go entirely to the surviving spouse. The decedent’s half joins the spouse’s half, and the spouse ends up with all of it.2California Legislative Information. California Probate Code 6401
Separate property splits according to who else survived:
- If no children, parents, or siblings survive, the spouse takes all of the separate property.
- If one child survives (or the descendants of one deceased child), or if no children survive but a parent or sibling does, the spouse takes one-half.
- If more than one child survives, or one child plus the descendants of a deceased child, or descendants of two or more deceased children, the spouse takes one-third.2California Legislative Information. California Probate Code 6401
The remainder — the half or two-thirds of separate property the spouse didn’t get, or the whole estate if there is no spouse — is what Section 6402 distributes.
First: Children and Their Descendants
Section 6402(a) sends everything to the decedent’s issue: children, grandchildren, and further descendants. If everyone in that group is the same number of generations removed — three living children, for instance — they split the estate equally.
When the living descendants are spread across different generations, California uses the “per capita at each generation” method from Probate Code 240. The estate is divided at the nearest generation with at least one living member. Each living person there takes one share. The shares that would have gone to deceased members of that generation are pooled, and that pool is then split equally among the living descendants of those deceased members at the next generation down, repeating until every share lands.3California Legislative Information. California Probate Code 240
This is not per stirpes, though people often assume it is. Under per stirpes, each branch inherits strictly through its own line. Under California’s rule, deceased members’ shares at any generation are combined before being redistributed, which produces a more even result across grandchildren who come from branches of different sizes.
Half-Blood Children and Relatives
A relative who shares only one parent with the decedent inherits the same share as a full-blood relative. California does not cut half-blood shares.4California Legislative Information. California Probate Code 6406
Children Conceived Before Death, or After
A child conceived before a parent’s death but born afterward inherits as if born during the parent’s lifetime. A child conceived after death through assisted reproduction can also inherit, but only under narrow conditions: the decedent must have left a signed, dated writing authorizing use of their genetic material, a designated person must notify the estate representative within four months of death, and the child must be in utero within two years of the date of death.5California Legislative Information. California Probate Code 249.5
Second: Parents
If no children or other descendants survive, the estate goes to the decedent’s parents in equal shares. A single surviving parent takes the whole thing. Adoptive parents inherit on the same footing as biological parents, and the court confirms the relationship through birth certificates, adoption records, or comparable documentation.
Third: Siblings and Their Descendants
With no descendants and no living parent, Section 6402(c) hands the estate to the decedent’s siblings and to the descendants of any who have died. Living siblings at the same generation share equally. If a sibling has died leaving children, those nieces and nephews take that sibling’s share under the same per capita at each generation method.
Half-siblings are included on equal terms with full siblings.4California Legislative Information. California Probate Code 6406 The personal representative has to identify and notify every one of them, because leaving out an heir can lead the court to set aside a distribution order later.
Fourth: Grandparents, Aunts, Uncles, Cousins
If none of the closer categories yields a living heir, Section 6402(d) sends the estate to the decedent’s grandparents in equal shares. If no grandparent is alive, it passes to their descendants — the decedent’s aunts, uncles, and first cousins — again using the per capita at each generation method.
People sometimes assume the estate automatically splits fifty-fifty between the maternal and paternal sides at this tier. It doesn’t. All surviving grandparents share equally regardless of side, so three surviving grandparents each take a third. The maternal and paternal lines only become separately relevant when no grandparent is alive and the shares flow down to their descendants.
Locating heirs at this level often requires a professional genealogy search, and the cost comes out of the estate before anyone receives a distribution.
Fifth: Children of a Predeceased Spouse
When no blood relatives through the grandparent tier survive, Section 6402(e) directs the estate to the children and grandchildren of a predeceased spouse. In practice these are stepchildren the decedent never formally adopted.
“Predeceased spouse” has a specific meaning here. A former spouse who obtained a divorce or annulment before the decedent’s death generally does not qualify. The provision reaches situations where a spouse died first and the decedent never remarried.
Sixth: Next of Kin
Section 6402(f) covers the broadest catch-all. If nobody in the higher tiers is alive, the estate goes to the decedent’s nearest relative by degree of kinship, measured by counting steps up to the nearest common ancestor and back down to the claimant. When two or more relatives are equally distant, those who trace their relationship through a closer ancestor take priority. Reaching this tier is uncommon and usually involves second cousins or great-aunts as the closest surviving relatives.
Seventh: Parents of a Predeceased Spouse
The last tier before escheat is Section 6402(g). If no next of kin can be found and the decedent had no stepchildren from a predeceased spouse, the estate passes to the parents of a predeceased spouse. If both of those parents are dead, their descendants — the siblings, nieces, and nephews of the late spouse — inherit instead. Establishing these relationships takes death certificates, marriage records, and sometimes considerable documentation to prove the marriage between the decedent and the predeceased spouse.
Escheat to the State
If every tier of Section 6402 runs out with no qualifying heir, the estate passes to the State of California. Under Probate Code 6800, the property belongs to the state from the moment of death, though the formal transfer runs through probate.6California Legislative Information. California Probate Code 6800
Escheat isn’t necessarily the end. An heir who surfaces later can petition to recover the property from the State Controller’s Office, though the process gets harder the longer the delay.
Assets That Never Touch Section 6402
Section 6402 only governs assets that pass through probate. A large share of a typical person’s wealth may transfer outside probate entirely, and the intestacy ladder does not touch it:
- Real estate or accounts held in joint tenancy with right of survivorship go directly to the surviving co-owner.
- Life insurance policies, 401(k) plans, IRAs, and annuities pay out to the named beneficiary regardless of the intestacy rules.
- Payable-on-death and transfer-on-death accounts go straight to the named person.
- Assets in a revocable living trust pass according to the trust, not the statute.
The consequence is worth flagging. Someone can die intestate while most of their wealth goes to people the Section 6402 ladder would never have chosen. A life insurance policy naming an ex-spouse who was never removed pays that ex-spouse, even if the statute would have sent the estate elsewhere. Beneficiary designations override the intestacy rules.