California Probate Code 6402: Heirs, Shares, and Exclusions

California Probate Code 6402 sets the order in which relatives inherit when a Californian dies without a will. It governs the portion of the estate that does not pass to a surviving spouse; the spouse’s share is fixed separately by Section 6401, and whatever remains flows down the 6402 hierarchy. If there is no surviving spouse, the entire intestate estate runs through 6402 from the top.¹

The Priority Order Under Section 6402

Think of 6402 as a funnel. The estate passes to the first category that contains at least one living person. Once someone qualifies at that level, more distant relatives take nothing. The categories, in order:

Children of the decedent and their descendants
Parents of the decedent, equally, or the survivor if only one is living
Siblings and the descendants of any predeceased sibling
Grandparents and their descendants, split between the maternal and paternal sides
Children of a predeceased spouse (the decedent’s stepchildren)
Next of kin
Parents of a predeceased spouse and their descendants

If no qualifying relative exists at any of these tiers, the estate escheats to the State of California.² The last two tiers rarely come into play, but they exist because the legislature prefers keeping property with anyone connected to the decedent rather than sending it to the state.³

The Spouse’s Share Comes Off the Top

Before 6402 does anything, the surviving spouse takes under Section 6401. Community and quasi-community property go entirely to the spouse; the decedent’s half combines with the spouse’s own half, so the spouse ends up owning the whole asset. Nothing from those categories reaches the 6402 hierarchy.⁴

Separate property is split, and the split depends on who else survived:⁴

No surviving children, parents, or siblings: the spouse takes all of the separate property.
One child (or the descendants of one deceased child), or no children but a surviving parent, sibling, or niece/nephew: the spouse takes half.
Two or more children (or their descendants): the spouse takes one-third.

The remainder — one-half or two-thirds of the separate property — then drops into 6402 and moves down the list.

How Shares Are Divided Among Descendants

Within a tier, if everyone entitled to inherit is in the same generation, they take equal shares. It gets more involved when some members of a generation are dead but left descendants of their own.

California does not use classical per stirpes. Section 240 uses a method sometimes called per capita at each generation. The estate is divided into equal shares at the nearest generation with at least one living member. Each living person at that level takes one share. The shares that would have gone to deceased members of that level (who left living descendants) are pooled and redistributed equally among everyone at the next generation down.⁵

Say the decedent had three children. Two predeceased her, each leaving two children of their own. The surviving child still takes one-third. The other two-thirds is pooled and split equally among all four grandchildren, so each gets one-sixth. Under classical per stirpes the math happens to match here, but the results diverge when family branches contain different numbers of descendants. Section 240 keeps cousins at the same generational level on equal footing.

The same representation method applies further down the hierarchy: to the descendants of a predeceased sibling, and to the aunts, uncles, and cousins who take through a deceased grandparent.¹ At the grandparent tier, the estate is first divided between the maternal and paternal sides; if only one side has surviving grandparents or their descendants, that side takes everything.

Who Counts as a Child, Sibling, or Heir

Half-Blood Relatives

Half-siblings inherit exactly the same share as full siblings. California does not reduce the half-blood share the way some other states do.⁶

Adopted Children

Adopted children inherit from their adoptive parents on the same footing as biological children. Adoption generally severs the legal parent-child relationship with the biological parents for inheritance purposes, so the adopted child usually cannot inherit from the birth parents through intestate succession.⁷

There is a narrow exception. If the biological parent and child lived together as parent and child at some point (or the biological parent died before the child’s birth while married to or cohabiting with the other biological parent), and the adoption was by the spouse of a biological parent or occurred after a biological parent’s death, the parent-child relationship is not fully cut off. In those cases the adopted child can potentially inherit from both sides.⁷

Children Conceived Before Death

A child conceived before the decedent died but born afterward inherits as though they had been born during the decedent’s lifetime.⁸ Distribution cannot be finalized until the child is born, because their existence changes the share calculation.

The 120-Hour Survival Requirement

An heir must outlive the decedent by at least 120 hours (five days) to inherit. If someone dies within that window, the law treats them as having predeceased the decedent, and the estate passes to the next person in line.⁹ The rule matters most when family members die in the same accident, because without it property could bounce through two probate proceedings in quick succession.

Survival must be shown by clear and convincing evidence. If it cannot be, the heir is presumed not to have survived. One exception: the rule does not apply if enforcing it would cause the estate to escheat because no qualifying heir would remain.⁹

The Slayer Rule

A person who feloniously and intentionally kills the decedent is completely barred from inheriting. The bar covers inheritance by will, intestate succession, community property rights, and nonprobate transfers such as life insurance or trust distributions.¹⁰ The estate is distributed as if the killer had died before the decedent, so the killer’s own children can still inherit through the normal hierarchy. A murder conviction creates a conclusive presumption that the killing was felonious and intentional, but a conviction is not required. The probate court can apply the rule independently.

Property Traceable to a Predeceased Spouse

Section 6402.5 sits alongside 6402 and reroutes a specific slice of the estate. If the decedent had no surviving spouse or descendants, property traceable to a predeceased spouse is directed first to that predeceased spouse’s own relatives (their children, parents, or siblings) rather than following the standard 6402 order.¹¹ Time limits vary by asset type: real property qualifies if the predeceased spouse died within the previous 15 years; personal property qualifies only within 5 years.

Assets That Never Reach Section 6402

Section 6402 only decides where intestate property goes, and quite a lot of what a person owns at death is not intestate property at all. Several categories transfer automatically to a named beneficiary or co-owner and bypass probate entirely:

Joint tenancy real estate and accounts held with right of survivorship pass to the surviving co-owner at the moment of death.
Life insurance, retirement accounts (401(k)s, IRAs), and payable-on-death or transfer-on-death accounts go to the named beneficiary.
Assets held in a revocable living trust are distributed by the trust’s terms.
California transfer-on-death deeds move real property to a named beneficiary without probate.

Before applying the 6402 hierarchy to any estate, strip out every asset with a built-in transfer mechanism. What is left is what Section 6402 actually distributes.

1
California Legislative Information. California Code Probate Code 6402 – Intestate Succession Generally
2
California Legislative Information. California Code PROB – Escheat of Decedent’s Property
3
California Legislative Information. California Code PROB 6402 – Intestate Succession
4
California Legislative Information. California Code Probate Code 6401 – Intestate Share of Surviving Spouse
5
California Legislative Information. California Code Probate Code 240 – Distribution by Representation
6
California Legislative Information. California Code Probate Code 6406 – Relatives of the Halfblood
7
California Legislative Information. California Code Probate Code 6451 – Adoption and Inheritance
8
California Legislative Information. California Code Probate Code 6407 – Posthumous Conception
9
California Legislative Information. California Code Probate Code 6403 – 120-Hour Survival Requirement
10
California Legislative Information. California Code Probate Code 250 – Effect of Felonious and Intentional Killing
11
California Legislative Information. California Code Probate Code 6402.5 – Predeceased Spouse