Getting Modern With The Unacknowledged Heir
/The Tales Of The Long Lost Heir
Victorian and Modern Literature has poured over stories of the illegitimate child, never acknowledged by their father, suddenly finding the are THE HEIR to the father's untold wealth and power. Be it "Game of Thrones" (i.e. Gendry "The Bastard Child of Robert"), or a Charles Dickens novel (think Great Expectations....or several other like-minded stories), there is the makings of a great story where the non-acknowledged child grows up, the dying father tells one person "I have a son/daughter", and BOOM the rest of the story is about the chase for the wealth.
Now let us apply this story to modern life in California. Father has sexual relations with Mother, Mother has the child, Father refuses to acknowledge the child's existence, Father tells the Mother to never contact him, and the Mother follows those instructions. Father dies a wealthy man, without a wife, partner, or additional child or heir. While Father and child were alive, Father admitted only once, to his best friend/confidant, that he sired a child (and even then tells the friend the pregnancy was terminated). The child, now a teenager, wanted to but never was able to contact the father, and the mother never followed up to bring the father and child together.
In literature, in the big (and small) screen, the child appears in front of the audience, declares he/she is the true heir, inherits the estate, the mother is allowed to live in the guest house, and everyone tries to see some good in the deceased father.
The reality: the child is out of luck, and will not inherit an intestate share. Hello, California Probate Code!
The Current Position Regarding Intestate Inheritance Rights For A Non-Recognized Child
This situation was recently discussed in the 4th Appellate District, Division Three, and published as Estate of Amine Britel (Stennett et al. v. Britel et al), citation G049161 (Superior Court No. 30-2011-00478927), published April 23, 2015. The mother and father met at Harvard Business School, dated, but ultimately separated. Mother moved to California, father remained in the East Coast, and built up a great fortune. The father told one close friend he fathered a child (but that the pregnancy was terminated), the mother kept the fact quiet until after the untimely death of the father, and mother brought a Petition for Probating the Estate on behalf of the daughter (who was able to prove by a 99.9996% match in DNA she was the daughter of the decedent).
The Appellate Court supported the lower court's denying any inheritance rights for the daughter. Citing Probate Code Section 6453(b), the lower court found paternity was NOT established by clear and convincing evidence because the father did not openly hold out the child as his own. The higher court focused on whether a "private acknowledgement of paternity is synonymous with opening holding out the child as one's own", and decided father telling his confident about the child (and lying about the child being dead) was not "openly holding out the child as his own."
This concept of analyzing the method of "openly holding out" the information on a child is not new, and had the majority opinion been the one published opinion in Stennett et al. v. Britel et al., this case would not garner any notice. But.....the concurring opinion is what makes this case interesting.
Judge J. Fybel : Make Probate Code 6453(b) Consistent With Family and Juvenile Dependency Codes
The concurring opinion written by Judge Richard D. Fybel does support the majority opinion, but directs the California Legislature to re-examine the benefit of DNA testing and intestacy. As of this date, Section 6453(b) does not have any provision for a positive DNA test proving paternity. Judge Fybel opens an important door on this situation, arguing that adding a positive DNA test as a condition in 6453(b) would "improve the statute by ensuring the financial well-being of an innocent child, even though his or her father did not openly hold him or her out as his own within the meaning of the statute as it is now worded." Judge Fybel cites California's "rich history of protecting and supporting children", and indeed in both California Family Law, and Welfare & Institutions Statutes exemplify the California Legislative intent to protect and support children. The comparison suggests that if a father has the responsibility to financially support any children that is genetically his child, so too should a father's estate, absent a written will or trust, also bear the responsibility to help a "shunned" child.
Fybel's solution is for the Legislature to adopt the following new standard: "permit children to inherit intestate based on (1) clear and convincing genetic evidence of paternity, and (2) clear and convincing evidence that the father, during his lifetime, acknowledged father the child."
This proposed standard lowers the burden for the petitioner looking to inherit, as a positive paternity test, combined with proof of acknowledgement (removing the openly holding out standard), is presumably a much easier path to allow long-lost/forgotten heirs to seek their inheritance.
Such a change would also introduce those old-fashioned plot lines stated in the beginning of this article. Should the California Legislative listen to Judge Fybel's opinion, more modern-day "Gendrys" and "Pips" might have a chance to receive their intestate shares from their "long-lost" fathers. Until such a change in the Code, unacknowledged, secretly-acknowledged, or privately-acknowledged heirs in an intestate estate will remain, in the eyes of the California Probate jurisdiction, out in the cold.
(c) 2015 BY DAVID LIVINGSTONE TAUB, ESQ.