Intestate succession: beyond first cousins

Gallup polls consistently show that over half of American adults have no Will, much less any more advanced form of estate planning. (https://news.gallup.com/poll/351500/how-many-americans-have-will.aspx) That's because, if they consider the matter at all, most non-lawyers just assume that their children will automatically inherit (after their spouse). If they don't have a spouse or children, they assume that their closest relatives will inherit. If they do think about it, they expect that it will work just as depicted in the popular television show Downton Abbey. For instance, at the very beginning of that show, Lord Grantham's first cousin is his closest male heir. When the cousin dies, the immediate expectation is that the cousin's son will become the heir. Upon the death of that second possible heir, the search for the closest relative is on. Of course, modern viewers don't expect the gender of their heir(s) to be relevant anymore, particularly without a formal American aristocracy, but the same idea holds sway: any relative, no matter how close or far, could inherit.

The reality is a bit different. Here in California, Probate Code §240 sets forth the basic principle of the right of representation: the issue of a predeceased heir inherits in equal shares, per stirpes. Then, Probate Code §6402 provides the specific order of inheritance from an intestate decedent. The right of representation is an element in almost every category, including the family of a predeceased spouse. After a surviving spouse, distribution is directed to the following heirs (in order):

a) decedent's issue, with right of representation

b) decedent's parents

c) issue of decedent's parents, with right of representation (siblings and their issue)

d) issue of decedent's grandparents, with right of representation (first cousins and their issue)

e) issue of decedent's predeceased spouse, with right of representation (stepchildren and their issue)

f) more distant relatives without right of representation (second cousins and more distant)

g) parents of decedent's predeceased spouse, with right of representation

The first five categories are simple. Once it becomes necessary to branch out beyond first cousins, however, the statutory framework shifts dramatically. To illustrate, imagine that the decedent had four relatives (Alice, Bob, Carol, and Daphne); Daphne predeceased, but had three children (Huey, Louie, and Dewey). If the four relatives were all siblings, or even all first cousins, of the decedent, the inheritance would be simple: 1/4 to Alice; 1/4 to Bob, and 1/4 to Carol. Daphne's share would be subdivided into three parts, resulting in ¹⁄₁₂ to each of her children. However, when the four relatives are second cousins, the inheritance is ⅓ to Alice, ⅓ to Bob, and ⅓ to Carol; the children are omitted entirely.

Why should a single difference in the degree of relationship have such a significant impact on the distribution of an intestate Estate? Perhaps the California Legislature is reluctant to extend the definition of "next of kin" too broadly. This would hardly be unusual; in New York and Texas, for instance, the issue of great-grandparents are simply not included at all. See New York Estates, Powers, and Trusts § 4-1.1. and Texas Estates Code §201.001. When there is no legal "next of kin", an intestate Estate escheats to the state. Probate Code §6404. Thus, the state has a rational financial interest in limiting who can inherit as "next of kin".

Unfortunately, the existing statutory framework is not designed to achieve that goal in any sensible fashion. Probate Code §50 clearly states that a person's "issue" includes all lineal descendants of all generations. Through Probate Code §6402(g), even the parents of a predeceased spouse are included as potential heirs, along with their issue. Why, then, should the decedent's own (more distant) family members not enjoy the same right of representation as the members of the stepfamily?

Courts have long recognized this inherent generational disparity. See Estate of Hawkins, 194 Cal. App. 3d 102, 107 (1987) (The court held that the respondents were "entitled to share in decedent's estate even though they were related to her in a more remote degree than her seven first cousins.") Indeed, "it does not matter if the only issue surviving a predeceased first cousin are grandchildren or great grandchildren, or members of an even more remote generation, those issue are entitled to their predeceased ancestor's share of the estate." Estate of Beckel, 174 Cal. App. 4th 34, 38 (2009).

There is no good justification for omitting the right of representation for second or third cousins. If the more distant relatives are to be eligible to inherit at all, they should have the same right of representation as every other kind of intestate heir. "[I]ntestate succession is wholly statutory, [so any] inequality which results . . . has been engendered by the Legislature itself." Estate of McDill, 14 Cal. 3d 831, 840 (1975). The California Legislature has caused this inequality, creating a distinction where none rationally exists. Correcting the issue would add consistency and predictability to our statutory framework. It would also more closely match the expectations of ordinary Californians, allowing them to see the law as a reasonable and understandable part of their lives rather than an arcane and arbitrary system. That would be to the benefit of all of us, lawyers and non-lawyers alike.