Situation. (a) Where a husband and wife have died, leaving community property, and there is no sufficient evidence that they have died otherwise than simultaneously, one-half (2) of all the community property shall be administered upon, distributed, or otherwise dealt with, as if the husband had survived and as if said one-half (2) were his separate property, and the other one-half (2) thereof shall be administered upon, distributed, or otherwise dealt with, as if the wife had survived and as if said other one-half (2) were her separate property, except as provided in Section 1307 of this Title. (b) If a portion of the estate which was the community property of a husband and wife would otherwise escheat to the Government of Guam under the provisions of this Section and of Sections 917, 1001 and 1201 of this Title, or if a portion of the estate which was separate proper- ty of a previously deceased spouse would otherwise escheat to the Government of Guam under the provisions of Section 919 of this Title, because there is no relative, including next of kin, of one of the spouses to succeed to such portion of the estate, such portion of the estate shall be distributed in equal shares to the children of the other spouse and to their descendants by right of representation, or if such other spouse leaves no children, nor descendants of a deceased child, in equal shares to the parents of such other spouse, or if either is dead to the survivor, or if both are dead, in equal shares to the brothers and sisters of such other spouse and to their descendants by right of representation, or if such other spouse leaves neither parent, brother, sister, nor descendant of a deceased brother or sister, such portion of the estate goes to the next of kin of such other spouse in equal degree, except that when there are two or more collateral kindred in equal degree, but claiming through different ances- tors, those who claim through the nearest ancestor to such other spouse must be preferred to those claiming through an ancestor more remote. SOURCE: California Probate Code, § 296.4 (as amended.)
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COMMENT: The purpose of subsection (b) of § 1309 is, essentially, to prevent escheat to the greatest extent practicable by bringing § 1309 into conformity with § 917. Absent subsection (b), in other words, it might happen in a simultaneous death situation involving husband and wife that their community property would escheat, while if they did not die simultaneously their property would pass to collateral kindred as provided for in § 917. Such an anomalous situation is removed by subsection (b), which was added to the California Probate Code shortly after § 228 (similar to § 917, supra) was added to the California Probate Code. Note that § 1309 does not appear in the Uniform Simultaneous Death Act, 9A Uniform Laws Annotated; this is so because the U.S.D.A. contains no provisions concerning community property, and thus such provisions were drafted as additions to the U.S.D.A. in California (and, presumably, in the other community property jurisdictions of the United States.) Guam, being a community property jurisdiction, needs such provisions to fill the gaps that would be left in the U.S.D.A. in their absence.