BILL ANALYSIS �
AB 490
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 490 (Skinner)
As Amended May 23, 2013
Majority vote
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|ASSEMBLY: |75-0 |(April 11, |SENATE: |31-0 |(June 10, |
| | |2013) | | |2013) |
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Original Committee Reference: JUD.
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 without an effort to provide for the child's support or
without communication from the parent, or both, for at
least seven consecutive 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.
The Senate amendments extend the timeframe from five to seven
years for a parent not to inherit from his or her child for not
supporting or communicating with the child.
EXISTING LAW :
AB 490
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1)Provides that any part of a decedent's estate that is not
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
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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 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
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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. 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 without
an effort to support or to communicate with the child, or both,
for at least seven 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
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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 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:
0001104