BILL ANALYSIS Ó
AB 490
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Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 490 (Skinner) - As Introduced: February 19, 2013
As Proposed to be Amended
SUBJECT : INTESTATE SUCCESSION: CHILDREN
KEY ISSUE : SHOULD A PARENT WHO ABANDONS HIS OR HER CHILD DURING
THE CHILD'S MINORITY AND DOES NOT EVER RECONCILE BE PROHIBITED
FROM INHERITING FROM THAT CHILD IF THE CHILD DIES WITHOUT A
WILL?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
When a person dies with a will, his or her assets pass as
directed by the will. The decedent's wishes are known and
followed. However, if the person does not leave a will, he or
she dies intestate and the estate passes based on the state's
intestacy statutes. The rules set out in statute are generally
the Legislature's best guess of what a majority of decedents
would have wanted. The probate court does not look at the
nature and quality of the relationship between the decedent and
the heirs, or any other equitable issue. Rather the court
simply follows statutory directive.
This bill, sponsored by the Trusts & Estates Section of the
State Bar, seeks to correct an unjust outcome that can result
based on current intestacy laws. Under current law, intestate
inheritance varies based on whether the decedent was born to
married parents or not. If the decedent was born to married
parents, the parents inherit from the child, regardless of the
quality of their relationship, but if the decedent was born to
unmarried parents, a parent can only inherit from the child if
that parent was involved in the child's life. This bill
eliminates the distinction between married and unmarried parents
and permits all parents to inherit from their children, unless
the parent-child relationship was severed during the child's
minority. There is no reported opposition to the bill.
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SUMMARY : Provides that a parent who abandoned his or her child
does not inherit from the child if the child dies without a
will. Specifically, this bill :
1)Provides that a parent of a child who died intestate does not
inherit from or through that child if any of the following is
true:
a) The parent's parental rights were terminated and the
parent-child relationship was not judicially reestablished;
b) The parent failed to acknowledge the child; or
c) The parent left the child during the child's minority and
failed to provide for the child's support or to communicate
with the child, or both, for at least five years that
continued until the end of the child's minority, with the
intent to abandon the child. Provides that failure to
provide support or communicate with the child for the
required period is presumptive evidence of the parent's
intent to abandon the child.
2)Provides that a parent who does not inherit under #1), above,
is deemed to have predeceased the child and intestate estate
passes as otherwise required.
EXISTING LAW :
1)Provides that any part of a decedent's estate that is not
effectively disposed of by will passes to the decedent's
heirs. (Probate Code Section 6400. All further references
are to this code unless otherwise noted.)
2)Provides that if an intestate decedent leaves a surviving
spouse or registered domestic partner, that spouse or
registered domestic partner inherits the decedent's half of
the community and quasi-community property and:
a) All of the separate property if the decedent left no
surviving issue (lineal descendants), parent, sibling or
issue of a predeceased sibling; or
b) One-half of the separate property if the decedent left
one child or no issue, but a parent(s) or their issue; or
c) One-third of the separate property if the decedent left
more than one child, one child and the issue of one or more
deceased children, or the issue of two of more deceased
children. (Sections 50, 6401.)
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3)Provides that the part of the estate that does not pass to the
surviving spouse or registered domestic partner or, the entire
estate, if there is no surviving spouse or registered domestic
partner, passes:
a) To the decedent's issue, as provided;
b) If no surviving issue, to the decedent's parents
equally;
c) If no surviving issue or parent, to the parents' issue,
as provided;
d) If no surviving issue, or parent or issue of the
parents, to the grandparents or their issue, as provided;
e) If no surviving issue, parent or parents' issue, or
grandparent or grandparents' issue, to the issue of a
predeceased spouse or registered domestic partner, as
provided;
f) If no surviving issue, parent or parents' issue,
grandparent or grandparents' issue, or issue of a
predeceased spouse or registered domestic partner, to the
next of kin, a provided;
g) If no surviving kin or issue of a predeceased spouse or
registered domestic partner, to the parents of a
predeceased spouse or registered domestic partner or their
issue, as provided. (Section 6402.)
4)Provides that if a child is born to unmarried parents, a
parent does not inherit from the child, unless the parent or a
relative of the parent acknowledged the child and contributed
to the support of the child. (Section 6452.)
5)Provides that relatives of the half-blood inherit the same
share as if they were of the whole blood, so that
half-siblings inherit like whole siblings. (Section 6406.)
6)Provides that if there is no taker of an intestate estate, the
estate escheats to the state. (Section 6404.)
COMMENTS : When a person dies with a will, his or her assets
pass as directed in the will. The decedent's wishes are known
and followed. However, if the person does not leave a will, he
or she dies intestate and the estate passes based on the state's
intestacy statutes. The rules set out in statute are generally
the Legislature's best guess of what the decedent would have
wanted. The probate court does not look at the nature and
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quality of the relationship between the decedent and the heirs,
or any other equitable issue. Rather the court simply follows
statutory directive. As the California Supreme Court has
stated: "Intestate succession is wholly statutory. Any
inequity which results . . . has been engendered by the
Legislature itself" (Estate of McDill (1975) 14 Cal.3d 831, 840)
and the right of succession is not an inherent right, but purely
a creature of statute. (Estate of Leslie (1984) 37 Cal.3d 186,
199.)
Under current law, intestate inheritance varies based on whether
the decedent was born to married parents (or registered domestic
partners) or not. If the decedent was born to married parents,
the parents inherit from the child, regardless of the quality of
their relationship. If the decedent was born to unmarried
parents, a parent can only inherit from or through the child if
both (1) the parent or a relative of the parent acknowledges the
child, and (2) the parent or relative of the parent contributed
to the support or care of the child.
This bill, sponsored by the Trusts & Estates Section of the
State Bar, seeks to eliminate the distinction between married
and unmarried parents and permit all parents to inherit from
their children who die intestate, unless the parent-child
relationship was severed. Under this bill, a parent will
inherit from his or her intestate child unless one of the
following is true:
a) The parent's parental rights were terminated and the
parent-child relationship was not judicially reestablished;
b) The parent failed to acknowledge the child; or
c) The parent left the child during the child's minority and
failed to provide for the child's support or to communicate
with the child, or both, for at least five years that
continued until the end of the child's minority, with the
intent to abandon the child. Failure to provide support or
communicate with the child for the required period is
presumptive evidence of the parent's intent to abandon the
child.
According to the sponsor, at least half of the states today have
laws that prohibit parents who intentionally abandon their
children from inheriting from them through intestacy. This
would do just that and treat married and unmarried parents
equally, consistent with other probate and family law statutes.
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A Recent Case Illustrates the Need for This Legislation : A
recent court of appeals decision vividly illustrates the
inequity of the current legislative scheme, which prevents a
married parent who abandons his or her child from being
disinherited. In Estate of Shellenbarger (2008) 169 Cal. App.
4th 894, a man abandoned his pregnant wife and one-year old
daughter and left them with no means of support. He never once
met his son who was born after he had left. As part of the
divorce, he was ordered to pay child support, but it appears he
paid little if any support for his children. The son died in
his forties, intestate, with no spouse or children. While
acknowledging that it was unfair for the father (whom the trial
court called a "bad guy") to reap a financial windfall after the
death of his son whom he never met and never supported, the
court of appeals found that since parental rights were not
legally terminated, the father had the statutory right to share
equally with the mother and inherit from his son, despite the
inequity of the situation. This bill seeks to avoid that
outcome in future cases and make clear that, regardless of
whether parents were married, if a parent abandons her child and
does not reconcile before the child's intestate death, that
parent will not be able to inherit from the child, unless the
child chooses otherwise in a will.
Parent Not Disinherited Just Because He or She Had No Ability to
Support the Child : The bill provides that parents will be
disinherited if, with the intent to abandon their child, they
left the child and failed to provide support or to communicate
with the child, or both, for at least five years that continued
until the end of the child's minority. While the bill provides
that failure to provide support or communicate with the child
for the required period is presumptive evidence of the parent's
intent to abandon the child, it is a rebuttable presumption. A
parent who was in jail or unemployed or otherwise could not
afford to support his or her child can simply rebut the
presumption of intent to abandon by showing that he or she did
not have the ability to support the child, but had no intention
to abandon the child.
If the Abandoning Parent is Disinherited, His or Her Relatives
May Still Qualify as Heirs; Amendment : This bill clarifies that
if a parent is disinherited for abandoning his or her child, his
or her relatives inherit from or through the child as if the
abandoning parent had predeceased the child. The author has
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agreed to an amendment to make it clearer precisely what occurs
when the parent is disinherited:
On page 2, delete lines 24-25 and insert:
(b) A parent who does not inherit under subdivision (a) shall be
deemed to have predeceased the child and intestate estate shall
pass as otherwise required under Section 6402.
Thus, the child's grandparents or, if the parent went on to have
other children, half-siblings may still inherit from the child,
even if the parent cannot. It is not uncommon, for example, for
the parents of an abandoning parent to help raise their
grandchild. This rule is consistent with current law and
appears likely to be what a child in this situation would have
wanted. Although, undoubtedly there will be situations in which
such a result is not equitable, it is simply impossible to
ensure equity under intestacy laws.
Always Better to Have a Will and Avoid Intestacy : It is
important to remember that these rules only apply if the child
dies without leaving a will. It is far superior for individuals
to leave a will (or living trust, also preferably with a will
because not all a decedent's assets may be subject to the trust)
to dispose of their property as they see fit. This is the only
way to guarantee that decedents' desires are complied with after
their death. In the absence of a will, intestacy statutes
control and these statutory rules may or may not reflect a given
decedent's wishes.
REGISTERED SUPPORT / OPPOSITION :
Support
Trust & Estates Section of the State Bar (sponsor)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
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