Intestate Succession

Intestate succession is the order in which relatives inherit an estate and in which proportions. Generally speaking, with some exceptions, spouses and children have the strongest priority to inherit portions of an estate. However, if you are not married and conceived a child out of wedlock what are the intestate inheritance rights of that child? You may be concerned that a child or children born out of wedlock will not have inheritance rights from the natural parent(s).

What are the intestate inheritance rights of children born out of wedlock?

The Parent-Child Relationship

(For an exhaustive legal review of California law regarding parent-child intestate succession and dependent standing for wrongful death actions please refer to Stennet v. Miller (2019) 34 Cal.App.5th 284.)

Under California law, a child almost always inherits from its natural parents. Natural parents are generally defined as the woman who gave birth to a child and the man with paternity rights. In other words, the marital status of the natural parent(s) does not matter.

Probate Code § 6450 governs the relationship of parent and child, stating in part, “for the purpose of determining intestate succession,” the “relationship of parent and child exists between a person and the person’s natural parents, regardless of the marital status of the natural parents” The same is true between an adopted person and the person's adopting parent(s).

There are a few exceptions, including:

• When parental rights are terminated;
• A parent did not acknowledge the child. Probate Code § 6453(b)(2) provides that a natural parent and child relationship may be established when paternity is established by clear and convincing evidence that the father has openly held out the child as his own.

The seminal case of Estate of Britel (2015) 236 Cal.App.4th 127 is illustrative. DNA testing showed the decedent fathered a child born out of wedlock. The mother of the child contended biological parents are, by definition, natural parents, and petitioned to administer the father’s intestate estate (i.e. no will) and for the child to be declared decedent’s sole heir under Probate Code §6453(b)(2). The court denied the mother’s petition and found that the father did not openly hold out the child as his child and, consequently, the child had no intestate succession rights. The court required the alleged father to have made an unconcealed affirmative representation of his paternity in open view.

• A parent abandoned the child for at least 7 years while the child was a minor, under some circumstances; or
• Adoption, under some circumstances.

CONTACT SWEENEY PROBATE LAW FOR AN INITIAL CONSULTATION

Understanding the issues discussed in this article requires the assistance of a qualified probate attorney who can better assess the appropriate course of action. I handle probate matters in all California counties and California probate courts, including Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I also represent parties residing in California and outside of California, including foreign countries.