Deceased Probate

Most people are aware of the general idea that, in the absence of a will, stepchildren do not stand to inherit from stepparents through intestate succession, unless the decedent died without any blood heirs. Indeed, according to the general laws of intestacy in California, the heirs of an intestate decedent inherit that decedent’s estate as follows:

  • first, the surviving spouse and/or decedent’s issue (children); if none, then
  • the decedent’s parents; if none, then
  • the issue of the decedent’s parents (siblings if alive, nieces/nephews is siblings have predeceased); if none, then
  • grandparents; if none, then
  • the issue of grandparents (aunts / uncles if alive, cousins if aunts/uncles have predeceased); and if none, then
  • finally to the issue of a predeceased spouse (stepchildren), among others.[i]

However, in California, Section 6402.5 of the Probate Code also provides a mechanism for stepchildren to have priority to inherit from a stepparent through intestacy, notwithstanding the general order of intestate succession described above. When a decedent had a predeceased spouse and the decedent passed away with no issue of his own or a surviving spouse at the time of his death, then under certain circumstances, the children of that predeceased spouse may have priority to inherit a portion of the decedent’s estate to which they would not otherwise have been entitled.[ii] To demonstrate how Section 6402.5 operates, consider the following hypothetical example:

When husband and wife, Henry and Wendy, got married, Wendy had two children from a prior relationship, Amy and Ben. Henry had no children of his own, nor did Henry formally adopt his stepchildren, Amy and Ben. Henry and Wendy did not have any children during their relationship and all assets that they owned were community property and titled in joint tenancy. Regrettably, Wendy passed away in 2000 without a will. Heartbroken, Henry never remarried and passed away seven years later in 2007. Henry was survived only by his sister, Sarah, and died without any estate plans in place. Henry and Wendy lived in California and owned a house and a vintage vehicle in California.

  1. Who inherits the house that Henry and Wendy owned in joint tenancy as community property?

When Wendy passed away in 2000, Henry became the sole owner of their house based on his right of survivorship (i.e., when real property is owned by multiple parties in joint tenancy, the death of one owner causes the decedent’s ownership share of that property to automatically vest in the surviving owner(s), without the need to open probate). Should Henry have decided to sell the house, he could have done so during his lifetime. Nevertheless, according to Section 6402.5(a), when Henry (the decedent) passed away “not more than 15 years” after Wendy (the predeceased spouse) passed away, and still with full ownership of the house, Henry’s stepchildren—Amy and Ben—became entitled to “the portion of the decedent’s estate attributable to the decedent’s predeceased spouse.” This would include “one-half of the community property in existence at the time of the death of the predeceased spouse,” among others.[iii] As such, Amy and Ben would be entitled to a one-half ownership of the house, which is attributable to their mother’s one-half community property interest, and Henry’s sister, Sarah, would be entitled to the other one-half community property interest, which is attributable to Henry. Importantly, this result is only applicable to the distribution of real property where the decedent and predeceased spouse died not more than 15 years apart.[iv]

  1. Who inherits the vintage vehicle that Wendy and Henry purchased during their marriage?

Unfortunately, Amy and Ben are not entitled to any interest in the vintage vehicle (or any of Henry’s personal property), because Wendy and Henry died more than five years apart. Section 6402.5(b) applies to give step-children intestate priority in the distribution of a decedent’s personal property (including cash assets), but only when the decedent and predeceased spouse died not more than five years apart.[v] And so here, only Sarah, Henry’s sister, would inherit the vintage vehicle.

As set forth above, the exceptions found in Section 6402.5 are only applicable in narrow circumstances. Thus, if you are a step-child of a decedent, then it is important to consult with an experienced probate attorney to ensure that your rights and interests in the decedent’s estate are protected.


[i] Cal. Prob. C. §§ 6401 and 6402.

[ii] Cal. Prob. C. § 6402.5.

[iii] Cal. Prob. C. § 6402.5(f)(1).

[iv] Cal. Prob. C. § 6402.5(a).

[v] Cal. Prob. C. § 6402.5(b).