California Probate Code Section 240 is the state’s default rule for splitting an estate among descendants when those descendants sit at different generations. It works by finding the nearest generation to the decedent that still has a living member, dividing the estate into equal shares at that generation, and then pushing any deceased person’s share down to that person’s own living descendants using the same method.1California Legislative Information. California Probate Code 240 – Distribution of Property
How the Division Works
The statute runs on a repeating three-step process:
- Find the closest generation to the decedent that has at least one living member.
- Divide the estate into equal shares at that generation, counting each living member and each deceased member who left living descendants of their own.
- For every deceased member’s share, drop it to that person’s descendants and apply the same process again, until every share lands with a living person.
Each living person at the chosen generation takes a full share outright. A deceased person at that generation only generates a share if they left living descendants; otherwise they are passed over.
Two Examples That Show the Rule in Action
One Child Has Died
The decedent had three children: Alex, Beth, and Carlos. Alex and Beth are living. Carlos died before the decedent, leaving two children of his own. The children’s generation has living members, so the division happens there. The estate splits into three equal shares. Alex and Beth each take one-third. Carlos’s one-third drops to his two children, who split it, so each grandchild receives one-sixth.
All Children Have Died
Same decedent, but now all three children have predeceased. Alex left one child, Beth left two, Carlos left three. Because no one in the children’s generation is alive, Section 240 skips that generation entirely and begins at the grandchildren’s level, where all six are living. The estate divides into six equal shares and every grandchild receives one-sixth.1California Legislative Information. California Probate Code 240 – Distribution of Property
The size of each parent’s family doesn’t change the outcome. Every grandchild is the same degree of kinship to the decedent, so each one takes an equal share.
When Section 240 Applies
Dying Without a Will
The most common trigger is intestacy. Probate Code Section 6402 directs that when property passes to descendants of unequal degree of kinship, it is distributed “in the manner provided in Section 240.” That reference runs through the whole intestacy ladder, so Section 240 can govern distributions to the descendants of the decedent’s parents, grandparents, or a predeceased spouse, not only the decedent’s own descendants.2California Legislative Information. California Probate Code 6402 – Intestate Succession
Wills, Trusts, and Other Instruments
Section 240 also controls when a will, trust, or other instrument explicitly calls for distribution “in the manner provided in Section 240.” Beyond that, Section 245 makes Section 240 the automatic default whenever an instrument sends property to “issue” or “descendants” without specifying a method. Even mixed phrases like “per capita and per stirpes” or “equally and by right of representation” are not treated as a contrary intention, so Section 240 still applies.3Justia. California Code Probate Code 245-247 – Distribution Under a Will, Trust, or Other Instrument
One boundary to know: Section 240 only governs if the decedent died on or after January 1, 1985. Older distribution rules apply to earlier deaths.4California Legislative Information. California Probate Code 240 – Intestate Distribution System
How Section 240 Differs From Per Stirpes and Per Capita
California recognizes three statutory distribution methods, and they produce different numbers for the same family. The differences matter most when some members of a generation have died leaving unequal numbers of descendants.
Per Stirpes Under Section 246
Section 246 applies when an instrument signed on or after January 1, 1986, explicitly uses “per stirpes,” “by representation,” or “by right of representation.” The key difference from Section 240 is the starting point. Section 246 always begins at the children’s generation, even if every child has died. Section 240 skips down to the nearest generation with a living person.
Take the earlier example where all three children predeceased the decedent. Under Section 246, the estate still divides into three shares at the children’s level. Alex’s child takes Alex’s full one-third. Beth’s two children split Beth’s one-third. Carlos’s three children split Carlos’s one-third. The results:
- Alex’s child: 1/3
- Each of Beth’s children: 1/6
- Each of Carlos’s children: 1/9
Under Section 240, every grandchild instead takes an equal 1/6. Per stirpes preserves each family branch’s share regardless of how many descendants are in it. Section 240 prioritizes equality among people who are equally related to the decedent.
Per Capita at Each Generation Under Section 247
Section 247 applies when an instrument calls for distribution “in the manner provided in Section 247” or uses the phrase “per capita at each generation.” It begins the same way as Section 240: divide at the nearest generation with a living member, and each living member takes one share. The split shows up in what happens to the remaining shares.5California Legislative Information. California Probate Code 247 – Distribution Under a Will, Trust, or Other Instrument
Under Section 240, each deceased person’s share drops down inside that person’s own branch. Under Section 247, all the leftover shares are pooled and split equally among everyone at the next generation, regardless of which branch they come from.
Consider a decedent with three children: Alex (living), Beth (deceased, two children), and Carlos (deceased, one child). All three methods start by dividing the estate into three shares at the children’s level, and Alex takes one-third.
- Under Section 240: Beth’s one-third goes to her two children, 1/6 each. Carlos’s one-third goes to his sole child, who takes 1/3. The lone grandchild in Carlos’s branch inherits more because that branch has only one descendant.
- Under Section 247: The remaining two-thirds is pooled and divided equally among all three grandchildren, so each takes 2/9.
Section 247 produces the flattest equality among same-generation descendants. Section 246 most strongly protects branch shares. Section 240 sits between them.
Community Property Shrinks the Pool First
California is a community property state, and that affects how much Section 240 actually reaches. Property acquired during marriage through either spouse’s earnings is generally owned 50-50. When one spouse dies, the surviving spouse already owns their half. Only the decedent’s half of community property passes through the estate and becomes subject to distribution. Separate property, meaning assets owned before marriage or received by gift or inheritance during marriage, passes entirely through the decedent’s estate.
If most of the assets are community property and the decedent was married, the surviving spouse keeps half off the top before any generational division under Section 240 begins.
Taxes on What Heirs Receive
Inheriting through a Section 240 distribution does not trigger federal income tax. The federal government does not tax inheritances as income to the recipient. California has no state estate tax or inheritance tax either; the state eliminated its estate tax for deaths on or after January 1, 2005.6California State Controller’s Office. California Estate Tax
The federal estate tax applies to the estate itself before distribution, not to individual heirs. For 2026, estates valued below $15,000,000 per person owe no federal estate tax. Estates above that threshold face a top rate of 40% on the excess, but the liability sits with the estate.7Internal Revenue Service. What’s New – Estate and Gift Tax
One caveat for beneficiaries: inherited assets like retirement accounts or income-producing property can generate taxable income after you receive them. The inheritance is not taxed, but the income it later produces is.