BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 490 (Skinner)
As Amended May 23, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
TMW
SUBJECT
Intestate Succession: Children
DESCRIPTION
This bill would provide that a parent does not inherit from or
through a child on the basis of the parent and child
relationship if any of the following apply: (1) the parent's
parental rights were terminated and the parent-child
relationship was not judicially reestablished; (2) the parent
did not acknowledge the child; or (3) the parent left the child
during the child's minority without an effort to provide for the
child's support or without communication from the parent, as
specified.
This bill would also provide that a parent who does not inherit
from or through the child as provided above shall be deemed to
have predeceased the child, and the intestate estate shall pass
as otherwise provided by the intestate statutes.
BACKGROUND
When a person dies without leaving a will to distribute his or
her property, the intestate statutes dictate how the property
will be distributed to the person's heirs. Under existing law,
the surviving spouse of the deceased person (decedent) receives
one-half of the intestate share of the property if the decedent
has no children but leaves a parent or parents or the parents'
children. (Prob. Code Sec. 6401(c)(2)(B).) However, a parent
of a child who is born out of wedlock can only inherit from the
child if the parent acknowledged the child and contributed to
the support or care of the child. (Prob. Code Sec. 6452.)
(more)
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This bill, sponsored by the Trusts and Estates Section of the
State Bar of California, would repeal the intestate statute
regarding inheritance from a child born out of wedlock and
instead provide that a parent may not inherit from the child if
the parental rights were terminated and not judicially
reestablished, the parent did not acknowledge the child, or the
parent left the child during the child's minority without
providing support or communication, as specified.
CHANGES TO EXISTING LAW
Existing law provides that where a person dies without leaving a
will to provide for disposition of his or her property, that
property passes by intestate succession, i.e., as provided by
statute. (Prob. Code Sec. 6400.)
Existing law provides a surviving spouse or registered domestic
partner with one-half of the community and quasi-community
property of the deceased person (decedent), and, for the
decedent's separate property, provides to the surviving spouse
or registered partner the following:
the entire intestate estate if the decedent did not leave any
surviving issue, parent, brother, sister, or issue of a
deceased brother or sister;
one-half of the intestate estate where the decedent leaves
only one child or the issue of one deceased child, or where
the decedent leaves no issue but leaves a parent or parents or
their issue or the issue of either of them; and
one-third of the intestate estate where the decedent leaves
more than one child, where the decedent leaves one child and
the issue of one or more deceased children, or where the
decedent leaves issue of two or more deceased children.
(Prob. Code Sec. 6401.)
Existing law provides that the part of the decedent's property
not passing to the surviving spouse or surviving domestic
partner, or, if there is no spouse or domestic partner, the
decedent's entire estate passes as follows:
to the decedent's children, taking equally if they are all of
the same degree of kinship to the decedent, but if of unequal
degree those of more remote degree;
to the decedent's parent if there are no surviving children of
the decedent; or
if there is no surviving child or parent of the decedent, to
the children of the parents or either of them, the children
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taking equally if they are all of the same degree of kinship
to the decedent, but if of unequal degree those of more remote
degree. (Prob. Code Sec. 6402(a)-(c).)
Existing law provides that if a child is born out of wedlock,
neither a natural parent nor a relative of that parent inherits
from or through the child on the basis of the parent and child
relationship unless both of the following requirements are
satisfied: (1) the parent or a relative of the parent
acknowledged the child; and (2) the parent or a relative of the
parent contributed to the support or the care of the child.
(Prob. Code Sec. 6452.)
This bill would repeal the above intestate succession statute
and instead provide that a parent does not inherit from or
through a child on the basis of the parent and child
relationship if any of the following apply: (1) the parent's
parental rights were terminated and the parent-child
relationship was not judicially reestablished; (2) the parent
did not acknowledge the child; or (3) the parent left the child
during the child's minority without an effort to provide for the
child's support or without communication from the parent, for at
least seven consecutive years that continued until the end of
the child's minority, with the intent on the part of the parent
to abandon the child.
This bill would provide that the failure to provide support for
the child or to communicate with the child for the prescribed
period is presumptive evidence of an intent to abandon.
This bill would also provide that a parent who does not inherit
from or through the child as provided above shall be deemed to
have predeceased the child, and the intestate estate shall pass
as otherwise provided by intestate statutes.
COMMENT
1. Stated need for the bill
The author writes:
Under current law, a parent who intentionally abandoned a
child born during a marriage may inherent from that child
through intestate succession even if the parent never saw the
child, communicated with the child, or provided any support
for the child. In addition, under current law a parent who
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intentionally abandoned a child not born during marriage may
inherent from the child through intestate succession if the
parent acknowledged the child, for example, by being named on
the child's birth certificate, and contributed some minimal
support to the child.
AB 490 prohibits a parent who intentionally abandoned a child,
and neither supported nor communicated with that child during
the last [seven] years of his or her minority, from inheriting
from that child through intestate succession, whether or not
the child was born during marriage.
2. Disinheritance of parent who abandons child
This bill would repeal the existing intestacy statute that
authorizes inheritance by the parent of a child born out of
wedlock when the parent can establish that the parent
acknowledged the child or contributed to the support or care of
the child. This bill would, instead, prohibit a parent from
inheriting from a child if the parent's rights were terminated
and not judicially reestablished, the parent did not acknowledge
the child, or the parent left the child and made no effort to
provide support or communicate with the child for at least seven
years that continued to the end of the child's minority.
The author argues this bill is necessary to prevent a parent who
abandons a child born out of wedlock from later inheriting from
the child. The sponsor, the Trusts and Estates Section of the
State Bar of California (TEXCOM) asserts that "[i]t is highly
unlikely that a child whose parent had abandoned her before age
13 and who had failed to support or communicate with her would
want that parent to inherit from her. TEXCOM points to a recent
case, Estate of Shellenbarger (2008) 169 Cal.App.4th 894, in
which the court held that the father, who had failed to provide
any support or have any meaningful relationship with his child
but was married to the child's mother at the time the child was
born, could inherit from the child. This result was due to the
intestate statute that only provided for disinheritance of a
parent who abandoned a child born out of wedlock. (Id. at p.
896.)
TEXCOM asserts that "[t]he result in Shellenbarger does not
carry out a decedent's likely intent. [This bill] remedies the
problem that this and similar cases present, without unduly
burdening the court with factual disputes, by prohibiting a
parent from inheriting from a child only in the most egregious
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situations. The abandonment must occur during the child's
minority and last for more than [seven] consecutive years that
continue to the end of the child's minority. Thus, [this bill]
would not disinherit a parent who abandons a child temporarily
and who re-unites with the child during minority. Because the
abandonment must be intentional, a parent who is involuntarily
institutionalized or who is performing military service would
not be disinherited. On the other hand, in order to inherit
from a child, a parent who has intentionally abandoned a minor
for more than [seven] years must both financially support the
child and communicate with the child. Otherwise, a parent whose
wages the state has garnished to pay for state-provided medical
coverage or who has paid court-ordered support but who otherwise
has failed to communicate with the child for more than [seven]
years would remain able to inherit."
The author notes that at least 25 states have intestacy laws
that prohibit a parent from inheriting through a child the
parent abandoned. Importantly, this bill would remove the
distinction in the intestacy statutes between a child born out
of wedlock and a child born to married parents, but who does not
have any relationship with one or more of the parents. In this
way, TEXCOM asserts that this bill would further the purpose of
providing "judicial efficiency and avoiding the undesirable risk
that a deceased child's estate will be claimed by a parent who
had no contact with the decedent during life."
It is important to note that this bill does not alter the
existing inability of a parent, who has abandoned the child, to
inherit even though the parent-child relationship is
reestablished when the child is an adult. Existing law
disinherits the parent of the child (born out of wedlock),
forever, unless the parent can establish that the parent
acknowledged the child and provided care and support of the
child. This bill merely adds an additional method of
prohibiting the parent's inheritance (when the parent-child
relationship was judicially terminated and not judicially
reestablished), maintains the existing "acknowledgment"
requirement, and clarifies the "care and support" provision of
existing law. Under either existing law or this bill, the adult
child would have to provide for the parent in the adult child's
will for the parent to inherit from the adult child.
Support : None Known
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Opposition : None Known
HISTORY
Source : Trusts and Estates Section of the State Bar of
California
Related Pending Legislation : None Known
Prior Legislation :
AB 2751 (Kaloogian, Ch. 862, Stats. 1996) deleted the exception
which permitted siblings of a child born out-of-wedlock and
their issue to inherit on a different basis than other relatives
of the child.
AB 1137 (Knight, Ch. 529, Stats. 1993) established the existence
of a parent-child relationship for the purpose of determining
intestate succession in a probate action by clear and convincing
evidence, reorganized intestate succession statutes, and
clarified the law regarding the intestate inheritance rights of
adoptees and their whole blood siblings.
Prior Vote :
Assembly Committee on Judiciary (Ayes 9, Noes 0)
Assembly Floor (Ayes 75, Noes 0)
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