BILL ANALYSIS Ó
AB 490
Page 1
ASSEMBLY THIRD READING
AB 490 (Skinner)
As Amended April 8, 2013
Majority vote
JUDICIARY 9-0
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|Ayes:|Wieckowski, Wagner, | | |
| |Alejo, Chau, Dickinson, | | |
| |Garcia, Maienschein, | | |
| |Muratsuchi, Stone | | |
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| | | | |
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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
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effectively disposed of by will passes to the decedent's heirs.
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;
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 or more deceased children.
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, as provided;
or,
g) If no surviving kin or issue of a predeceased spouse or
registered domestic partner, to the parents of a predeceased
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spouse or registered domestic partner or their issue, as
provided.
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.
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.
6)Provides that if there is no taker of an intestate estate, the
estate escheats to the state.
FISCAL EFFECT : None
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 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
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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. 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.
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 his or 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.
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.
This bill clarifies that if a parent is disinherited for abandoning
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his or her child, his or her relatives inherit from or through the
child as if the abandoning parent had predeceased the child.
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.
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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0000093