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Intestate succession when there is no surviving spouse or issue

For many in the San Fernando Valley, the issue of estate planning may engender absolutely no sense of urgency, as most believe that they will have ample time to address it later on in life. Others may believe that they simply do not need a will. These attitudes no doubt contribute to the fact that, according to information shared by USA Today, as many as 64 percent of Americans currently do not have a will.

Those who die without wills will see their estates become subject to intestate succession. As has been detailed in earlier blog posts on this site, one’s spouse plays a large role in this process. Yet what if one’s spouse preceded him or her in death? In such a case, the entire estate would pass to his or her surviving issue. Yet if he or she has no surviving issue, matters may become a little more complicated.

Section 6402.5 of the California Probate Code states that in cases where one has no surviving spouse or surviving issue, the surviving issue of the predeceased spouse may be entitled to the portion of the estate attributable to him or her. For the purposes of this law, that includes:

  •          One half of the community property that existed at the time of his or her death.
  •          One half of any community property gifted to the surviving spouse upon his or her death.
  •          Any community property in which he or she had any incident of ownership that vested to the surviving spouse upon his or her death.

In accordance with this section, such property may be dispersed to the predeceased spouse’s issue. If there are none, then it will go his or her parents or siblings. If all are dead, then it reverts back to the decedent’s next of kin. 

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