Intestate Succession and The Meaning of Escheat

As I discussed yesterday, if a term or conveyance in your will is no longer valid at the time of your death, then your will ceases to control, and the relevant laws of intestacy take over in order to determine how your property is distributed, just as if you had no will at all.

While these laws vary according to state, California presents a fairly typical sort of regime, so I thought I would present that for illustrative purposes. Keep in mind that the term decedent refers to the person whose estate is at issue. So, if you are thinking about what will happen when you die, then you are the decedent.

When we are discussing the rules of intestate succession, what happens when a person dies without a will (or testate), we must keep in mind the nature of the state's desires. When someone dies intestate and has no heirs, their estate will escheat, or return back to, the state. Contrary to popular opinion, the state does not want this. Thus, they create an elaborate scheme to ensure that your estate goes to a relative or someone somehow related to you, however remote.

The relevant section, 6402, sets forth the degrees of relation which are entitled to inherit someone's estate when there is no will in place. The order is as follows: spouse or domestic partner, issue of decedent (children), decedent's parents, issue of decedent's parents (siblings), grandparents, issue of grandparents (aunts or uncles), then:

Section 6402

   (e) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, but the decedent is survived
by the issue of a predeceased spouse, to that issue... (i.e. your former step-children)
   (f) If there is no surviving issue, parent or issue of a parent,
grandparent or issue of a grandparent, or issue of a predeceased
spouse, but the decedent is survived by next of kin, to the next of
kin in equal degree...(e.g. cousins)
   (g) If there is no surviving next of kin of the decedent and no
surviving issue of a predeceased spouse of the decedent, but the
decedent is survived by the parents of a predeceased spouse or the
issue of those parents, to the parent or parents equally, or to the
issue of those parents if both are deceased, the issue taking equally
...(i.e. your former parent in-laws or sibling in-laws)[all emphasis added]
In summary, in California, if you die without a will, this is the order in which your relatives will inherit:
  • spouse or domestic partner
  • child(ren)
  • parents or siblings
  • grandparents or aunts/uncles
  • former spouse's child(ren) (e.g. step-children)
  • next of kin (e.g. cousins, etc.)
  • former parent in-laws or sibling in-laws

When I first learned this, I thought it was fairly remarkable. For what are the chances that a person will be survived by their parents or grandparents? Absent some terrible tragedy where the decedent dies at a young age, they will probably have outlived their parents and grandparents. If they do not have any children, then their estate will go to their spouse or children, but if their spouse has already passed, or they are not married at the time, their estate will either go to their aunts or uncles (which tend to be older in most cases), so they might not be around either.

Thus, if you take a typical person of a certain age that is either unmarried, or has outlived their spouse, and has no children, their estate has a good chance of passing to either their spouse's issue, possibly their next of kin, or to their former mother-in-law, father-in-law, or brother or sister in law.

Therefore, unless you have an extensive array of cousins that outlive you, assuming that you outlive the rest of your family that is older in generational terms, there is a good chance that your married family will inherit your estate.

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