CALIFORNIA PROBATE CODE 2. Simultaneous Death Chapter 1. General Provisions
Section 6403. Failure to survive decedent by 120 hours; deemed predeceased; application of section (a) A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession, and the heirs are determined accordingly. If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state. (b) This section does not apply to the case where any of the persons upon whose time of death the disposition of property depends died before January 1, 1990, and case continues to be governed by the law applicable before January 1, 1990.
Section 21109. Transferees; failure to survive (a) A transferee who fails to survive the transferor an at-death transfer or until any future time required by the instrument does not take under the instrument. (b) If it cannot be determined by clear and convincing evidence that the transferee survived until a future time required by the instrument, it is deemed that the transferee did not survive until the required future time.
Section 220. Disposition of property; insufficient evidence of survivorship Except as otherwise provided in this chapter, if the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other.
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Section 221.
Application of chapter
(a) This chapter does not apply in any case where Section 103, 6211, or 6403 applies. (b) This chapter does not apply in the case of a trust, deed, or contract of insurance, or any other situation, where (1) provision is made dealing explicitly with simultaneous deaths or deaths in a common disaster or otherwise providing for distribution of property different from the provisions of this chapter or (2) provision is made requiring one person to survive another for a stated period in order to take property or providing for a presumption as to survivorship that results in a distribution of property different from that provided by this chapter. [Section 6211 deals with the rules of construction pertaining to the survivorship requirement for statutory wills, a topic beyond the scope of this course.] Section 223. Joint tenant (a) As used in this section, "joint tenants" includes owners of property held under circumstances that entitled one or more to the whole of the property on the death of the other or others. (b) If property is held by two joint tenants and both of them have died and it cannot be established by clear and convincing evidence that one survived the other, the property held in joint tenancy shall be administered or distributed, or otherwise dealt with, one-half as if one joint tenant had survived and one- half as if the other joint tenant had survived. (c) If property is held by more than two joint tenants and all of them have died and it cannot be established by clear and convincing evidence that any of them survived the others, the property held in joint tenancy shall be divided into as many portions as there are joint tenants and the share of each joint tenant shall be administered or distributed, or otherwise dealt with, as if that joint tenant had survived the other joint tenants.
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3.
Shares of Descendants Intestate Distribution System
Chapter 1
Section 240. Division into equal shares If a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue. Chapter 2 Section 245. Distribution Under a Will, Trust or Other Instrument Application of Section 240; per capita and per stirpes; equally and by right of representation
(a) Where a will, trust, or other instrument calls for property to be distributed or taken "in the manner provided in Section 240 of the Probate Code,” or where a will, trust, or other instrument that expresses no contrary intention provides for issue or descendants to take without specifying the manner, the property to be distributed shall be distributed in the manner provided in Section 240. (b) Use of the following words without more, as applied to issue or descendants, is not an expression of contrary intention: (1) "Per capita" when living members of the designated class are not all of the same generation. (2) Contradictory wording, such as "per capita and per stirpes" or "equally and by right of representation." Section 246. Distribution in manner provided in Section 246; per stirpes, by representation, or by right of representation (a) Where a will, trust, or other instrument calls for property to be distributed or taken "in the manner provided in Section 246 of the Probate Code," the property to be distributed shall be divided into as many equal shares as there are living children of the designated ancestor, if any, and deceased children who leave issue then living. Each living child of the designated ancestor is allocated one share, and the share of each deceased child who leaves issue then living is divided in the same manner. (b) Unless the will, trust, or other instrument expressly provides otherwise, if an instrument executed on or after January 1, 1986, calls for property to be distributed or taken "per stirpes," "by representation," or "by right of representation," the property shall be distributed in the manner provided in subdivision (a). (c) If a will, trust, or other instrument executed before January 1, 1986, calls for property to be distributed or taken "per stirpes," "by representation," or by "right of
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representation," the property shall be distributed in the manner provided in subdivision (a), absent a contrary intent of the transferor.
Section 247. Distribution in manner provided in Section 247; per capita at each generation (a) Where a will, trust, or other instrument calls for property to be distributed or taken “in the manner provided in Section 247 of the Probate Code,” the property to be distributed shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living. Each living member of the nearest generation of issue then living is allocated one share, and the remaining shares, if any, are combined and then divided and allocated in the same manner among the remaining issue as if the issue already allocated a share and their descendants were then deceased. (b) Unless the will, trust, or other instrument expressly provides otherwise, if an instrument executed on or after January 1, 1986, calls for property to be distributed or taken "per capita at each generation," the property shall be distributed in the manner provided in subdivision (a). (c) If a will, trust, or other instrument executed before January 1, 1986, calls for property to be distributed or taken "per capita at each generation," the property shall be distributed in the manner provided in subdivision (a), absent a contrary intent of the transferor.
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Shares of Ancestors and Collaterals See, supra, section 6402(f).
Section 6413. Relation through two lines of relationships; single share A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship which would entitle the person to the larger share.
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