California Probate Code 6402: Heir Hierarchy, 120-Hour Rule, and Exceptions

California Probate Code 6402 is the statute that decides who inherits when a California resident dies without a will, after the surviving spouse’s share has been set aside. It arranges relatives in a strict order of priority: 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, and finally the parents of a predeceased spouse and their descendants.¹ The estate passes to the first category that contains a living person, and everyone further down the list receives nothing. If no qualifying relative exists at any level, the estate escheats to the State of California.²

What Section 6402 Does and Doesn’t Cover

By its own terms, Section 6402 applies to “the part of the intestate estate not passing to the surviving spouse … or the entire intestate estate if there is no surviving spouse.”¹ So if the decedent was married, the spouse’s share is calculated first under Section 6401, and only what remains runs through the 6402 hierarchy. If there was no spouse, the entire estate runs through 6402 from the top.

The spouse’s share depends on how the property is classified. The surviving spouse inherits the decedent’s one-half of all community and quasi-community property, which means the spouse ends up owning those assets outright and nothing from that pool enters the 6402 hierarchy.³ Separate property is split:

If no children, parents, or siblings survived the decedent, the spouse takes all of the separate property.
If one child (or the descendants of one deceased child) survived, or if there are no descendants but a parent, sibling, or niece or nephew survived, the spouse takes one-half.
If two or more children (or their descendants) survived, the spouse takes one-third.

The one-half or two-thirds of separate property not going to the spouse is what then flows into Section 6402.³

Children and Their Descendants

Whatever remains after the spouse’s share, or the entire estate when there is no spouse, goes first to the decedent’s children and their descendants.¹ When every surviving child is at the same generational level, they share equally. When a child has died but left descendants of their own, those grandchildren step up to take a share.

The method of division is not traditional per stirpes. California uses Section 240, sometimes called per capita at each generation. The estate is first divided at the nearest generation containing at least one living member. Each living person at that level takes one share. The shares that would have gone to deceased members at that level who left descendants are pooled and divided equally among the next generation down.⁴

Imagine a decedent with three children. Two have died, each leaving two grandchildren. The surviving child takes one-third. The remaining two-thirds is pooled and split evenly among the four grandchildren, so each grandchild receives one-sixth. The pooling matters most when the deceased children left unequal numbers of grandchildren: Section 240 keeps cousins at the same generational level on equal footing.

Parents

If no children or other descendants survived, the estate passes to the decedent’s parents in equal shares. A single surviving parent takes the entire amount.¹

Siblings and Their Descendants

With no spouse, descendants, or parents in the picture, the estate moves to the decedent’s siblings. If a sibling has died first, that sibling’s children (the decedent’s nieces and nephews) take the share by representation under Section 240.¹

Half-siblings inherit on exactly the same terms as full siblings. California does not reduce the share of a relative of the half blood.⁵ Some states cut that share in half; California does not.

Grandparents, Aunts, Uncles, and Cousins

If no sibling or sibling’s descendant survives, the estate climbs to grandparents. The division splits maternal and paternal sides evenly. If both sides have surviving members, each takes half; within each side, descendants of a deceased grandparent (the decedent’s aunts, uncles, and cousins) take by representation under Section 240. If only one side has surviving grandparents or descendants, that side takes everything.⁶

The Tail of the Hierarchy

Section 6402 keeps reaching outward past the extended family. If no grandparents or their descendants survive, the estate passes to the children of a predeceased spouse (effectively, the decedent’s stepchildren). After that it goes to the next of kin. And finally, before escheat to the state, it can pass to the parents of a predeceased spouse or their descendants.⁶ These bottom tiers rarely get used, but they reflect a clear legislative preference for keeping property with someone connected to the decedent rather than giving it to the state.

A separate provision, Section 6402.5, takes certain property out of the standard 6402 order altogether. If the decedent died without a spouse or descendants and the estate includes property traceable to a predeceased spouse, that property is routed first to the predeceased spouse’s own children, parents, or siblings. The time limits differ by asset type: real property qualifies if the predeceased spouse died within the previous 15 years, while personal property qualifies only within 5 years.⁷

The 120-Hour Survival Requirement

An heir must outlive the decedent by at least 120 hours, which is five days, to inherit. Anyone who dies inside that window is treated as having predeceased the decedent, and the estate skips to the next person in line.⁸ The rule exists mainly for accidents in which multiple family members die close together; without it, property can bounce through back-to-back probate proceedings based on who happened to breathe longer.

Survival must be shown by clear and convincing evidence. If that cannot be proven, the law presumes the heir did not survive the 120 hours. One exception: the rule does not apply when enforcing it would leave the estate without any qualifying heir and force it to escheat to the state.⁸

Assets That Bypass Section 6402 Entirely

Section 6402 only governs the probate estate. A lot of what a person owns at death doesn’t go through it at all, because it carries its own transfer mechanism. Joint tenancy property passes to the surviving co-owner at the moment of death. Life insurance proceeds, retirement accounts, and payable-on-death or transfer-on-death accounts go to the named beneficiary. Assets titled in a revocable living trust pass under the trust terms. California also recognizes transfer-on-death deeds that move real property to a named beneficiary without probate.

Families routinely assume a house or retirement account will be divided among heirs under intestacy, only to find it already belonged to a co-owner or named beneficiary the moment the decedent died. Before applying the 6402 hierarchy, strip out everything with a built-in transfer.

Who Counts as a Child or Heir

Adopted Children

Adopted children inherit from their adoptive parents on the same terms as biological children. Adoption also generally severs the legal parent-child relationship with the biological parents for inheritance purposes, so an adopted child typically cannot inherit from a birth parent through intestate succession.⁹

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 relationship with the biological side is not fully severed. In those cases the adopted child can inherit from both sides.⁹

Children Conceived Before Death

A child conceived before the decedent’s death and born afterward inherits as if they had been born during the decedent’s lifetime.¹⁰ Final distribution has to wait on the birth, because the child’s existence changes how shares are calculated.

The Slayer Rule

A person who feloniously and intentionally kills the decedent is completely barred from inheriting, whether by will, intestate succession, community property, or nonprobate transfer like life insurance or a trust.¹¹ The estate is distributed as if the killer predeceased 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 no conviction is required: the probate court can apply the rule on its own findings.

Advancements

A large lifetime gift to an heir reduces that heir’s intestate share only if one of two things is true: the decedent stated in a writing contemporaneous with the gift that it was an advancement, or the heir acknowledged in writing that it should be deducted from their share.¹² Without that paper, the money is simply a past gift. This is where family disputes tend to erupt: a parent hands one child a down payment thinking it will come out of their share, never writes it down, and the siblings have no legal basis to claw it back.

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 Probate Code 6401 – Intestate Share of Surviving Spouse
4
California Legislative Information. California Code Probate Code 240 – Distribution by Representation
5
California Legislative Information. California Code Probate Code 6406 – Relatives of the Halfblood
6
California Legislative Information. California Code PROB 6402 – Intestate Succession
7
California Legislative Information. California Code Probate Code 6402.5 – Predeceased Spouse
8
California Legislative Information. California Code Probate Code 6403 – 120-Hour Survival Requirement
9
California Legislative Information. California Code Probate Code 6451 – Adoption and Inheritance
10
California Legislative Information. California Code Probate Code 6407 – Posthumous Conception
11
California Legislative Information. California Code Probate Code 250 – Effect of Felonious and Intentional Killing
12
Justia. California Probate Code 6400-6414 – Intestate Succession Generally