Course Synopses/Outlines:

The Parent-Child Relationship Under Intestacy Statutes
Susan N. Gary

  1. Intestacy

    1. Intestacy statutes. Intestacy statutes provide for the disposition of a decedent’s probate property when the decedent dies without a valid will. Intestacy statutes provide, in effect, a will by default. Adults with the mental capacity required for executing a will can opt out of the intestacy system and dictate the disposition of their property as they wish. Nonetheless, many people die without valid wills and with property that will be distributed through the intestacy system.

      Persons in stepfamilies may be more likely to die without wills because of the difficult issues that drawing up a will can raise. A stepparent may want his or her spouse to feel that the stepparent loves the children of both spouses equally, but at the same time the stepparent may want to favor his or her biological children with dispositions at death.

    2. Purposes of Intestacy Laws

      1. Decedent’s intent. The purpose most often identified with intestacy statutes is that of giving effect to the probable intent of most decedents. The statutes assume that most decedents will want their property to go to their families, but current statutes define “family” narrowly.

      2. Benefits to society. In addition, intestacy statutes can serve more broadly defined societal goals. Society benefits if laws support families, both financially and otherwise.

      3. Family. Thus, both as a reflection of the decedent’s presumed intent and to promote society’s interests in strengthening families, the intestacy statutes distribute the decedent’s property to his or her “family.” The statutes reflect society’s view of what constitutes a family and also can support society’s rethinking of who should be considered family members.

  2. Intestacy’s Definition of Parent and Child

    1. In most states. Current intestacy statutes define “child” as related to the parent by blood or adoption. In several states stepchildren can inherit if the decedent left no other statutory heirs and the estate would otherwise escheat. That is, if the decedent had a surviving niece or a first cousin, that person would inherit and the stepchild would not. Only if no other heir survived would the stepchild take a share of the estate.

    2. In California. In 1983, California enacted the first intestacy provision that creates a share for stepchildren regardless of whether other heirs exist. A stepchild can inherit if three requirements are met: (1) a parent-child relationship began while the child was a minor (the statute does not define “parent-child relationship);” (2) the parent-child relationship continued throughout the joint lifetimes of the child and parent, and (3) the parent would have adopted the child but for a legal barrier.

      After a split in the lower courts, the California Supreme Court interpreted this last requirement to mean that the legal impediment to adoption persisted until the parent’s death. See Estate of Joseph, 949 P.2d 472 (Cal. 1998). This interpretation significantly limits the utility of the statutory provision. After a stepchild reaches the age of majority, the stepchild herself can give permission for an adoption and in most cases a legal impediment to adoption will no longer exist. Of course, adoption of an adult stepchild, regardless of the closeness of the relationship, is unlikely. Unless the stepparent dies while the stepchild is a minor, the statute will have little impact.

  3. The Problem

    1. Formal definition. Intestacy statutes rely on a formal definition of the parent-child relationship: persons related by blood or adoption. However, children in many families are not related to both of their functional parents by blood or adoption. Children in stepfamilies and in families headed by unmarried same-sex or opposite sex parents may not be related biologically to both parents. Adoption may not be possible, even if a functional parent-child relationship exists, either because a biological parent refuses to give consent or because the court refuses to permit a second parent adoption. Thus, many children and their parents fall outside the definition of family currently in use in intestacy statutes.

    2. Functional definition. A functional definition of the parent-child relationship would be more likely to carry out decedent’s presumed intent with respect to the distribution of probate property. A parent is more likely to want a child to share in the parent’s estate (and vice versa) if the two persons functioned in a caring and nurturing manner as parent and child. If the two did not function as parent and child, then it is much less likely than the decedent would want to give a share of his or her estate to the other.

      For intestacy purposes, however, a functional definition of parent and child creates other problems. Certainty and lack of discretion have long been favored in probate statutes. At the time an estate is probated, the decedent is unable to speak directly to the question of his or her wishes. The surviving family members have an incentive to promote their own interests and to “remember” the decedent’s wishes or behavior in ways that support their positions. In addition, discretion exercised by a judge or jury may yield inequitable and uneven results.

      An attempt to create a new definition of parent and child for intestacy purposes must reflect a compromise between a functional approach - with the discretion that approach necessarily entails - and the need to limit discretion in probate proceedings.

  4. A Definition of Parent and Child for Intestacy Purposes

    1. Goals. The proposal attempts to create a definition of parent and child for intestacy purposes that will be reasonably certain, that will provide adequate direction to the probate court, and that will be sufficiently flexible to include many of today’s families. The proposal adds a functional definition to the existing formal definitions of parent and child (related by blood or adoption). Two policies stand behind the proposal: (1) the intestate distribution should approximate the decedent’s intent, and (2) the intestacy statute should provide support for families, however configured.

    2. Overview. The proposed statute treats as a child a person who is the decedent’s biological or adopted child or a person who is determined to be a child under a clear and convincing evidence standard based on guidelines set out in the statute. The determination will focus on the relationship between the parent and child-the court will look for evidence that the relationship was ongoing, familial and mutually significant. To reduce the burdens on the court and to address concerns about judicial discretion, the statute will include an evidentiary presumption that a parent-child relationship existed. If factors establish the presumption, an heir contesting the existence of a functional parent-child relationship must produce clear and convincing evidence to overcome the presumption.

      The proposal draws on the work of Prof. Lawrence W. Waggoner, who advocated creating an intestate share for de facto partners in Marital Property Rights in Transition, 59 Mo. L. Rev. 21 (1994). The proposed statute was originally published in Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 Law & Inequality J. 1 (2000).

  5. Proposed Statute

    The proposed statutory language is in bold type and comments on the provisions follow in regular type. Note that the statutory language set forth below would be added to the existing definition of parent and child based on blood or adoption.

Parent and Child Relationship

(a) An individual is the child of another individual and an individual is the parent of another individual if the person seeking to establish the relationship proves by clear and convincing evidence that a parent-child relationship existed between the two individuals at the time of the decedent’s death.

The statute creates inheritance rights for both the parent and the child. That is, if the relationship can be proved, than a child can inherit from the parent and the parent can inherit from the child.

(b) [Factors] Although no single factor or set of factors determines whether a relationship qualifies as a parent-child relationship, the following factors are among those to be considered as positive indications that a parent-child relationship existed:

(1) The relationship between the parent and child began during the child’s minority. The younger the child, the greater the weight to be given to this factor.

Unlike the California statute, the proposal does not require that the relationship began when the child was a minor.

(2) The duration of the relationship was sufficient for the formation of a parent-child bond.

This factor is closely related to the first factor. The number of years the relationship existed can be a useful indication of the strength of the bond. The statute does not require continuous contact between the parent and child, but a long gap in the relationship could suggest that a parent-child relationship did not exist.

(3) The decedent was married to or was a committed partner of a biological or adoptive parent of the child.

This factor assumes that the intestacy statute includes a definition of committed partner or de factor partner based on Professor Waggoner’s proposal.

Unlike the California statute, the stepparent need not be married to the child’s legal parent for the relationship to qualify as a parent-child relationship under the statute. Marriage by itself can be considered as a factor because it reflects the fact that the parents have decided to formalize the creation of a family. But marriage of the parents should not be required because some parents cannot legally marry and other parents choose not to marry.

(4) The parent held the child out as his or her child, referring to the child as his or her child or treating the child as his or her child.

Friends or neighbors who knew the family can provide evidence.

(5) The parent provided economic and emotional support for the child; the child provided economic and emotional support for the parent.

This factor resembles the identification of a parent under the in loco parentis doctrine. A court could look to the application of the in loco parentis doctrine in other contexts for assistance in interpreting this factor. Evidence could show financial support, day-to-day care of a young child or an aging parent, or emotional support through daily contact in the home or through frequent visits.

(6) Treatment of the child by the parent was comparable to the decedent’s treatment of his or her legal children.

This factor may be of particular use in determining whether a parent-child relationship continued after the child became an adult.

(7) The decedent named the child or parent as a beneficiary to receive property at the decedent’s death through a nonprobate transfer.

Provisions for a child or parent through nonprobate transfers may indicate general donative intent. However, the decedent may have provided his or her parent or child through a nonprobate transfer as a substitute gift -- a gift in lieu of a share of the probate estate. Thus, evidence of a decedent parent’s treatment of his or her other children, if any, will be useful in applying this factor. Information concerning planning for the nonprobate assets may also be of help.

(c) [Presumption.] An individual’s relationship with the decedent is presumed to have been a parent-child relationship if:

(1) The parent and child lived in the same household for (i) periods totaling at least five years during the six years preceding the decedent’s death or (ii) periods totaling 12 years;

(2) The relationship between the parent and child began when the child was a minor; and

(3) One of the following:

(i) The decedent named the child or parent as a beneficiary to receive property at the decedent’s death through a nonprobate transfer;

(ii) The decedent was married to or was a committed partner of a biological or adoptive parent of the child; or

(iii) A court determined in another proceeding that the parent had acted in loco parentis with the child.

(d) [Force of the presumption.] If a presumption arises under subsection (c), the presumption is rebuttable only by clear and convincing evidence.

The presumption shifts the burden of proof if a combination of factors exist. The presumption is rebuttable because the existence of the factors does not necessarily mean that a parent-child relationship existed. Evidence to rebut the presumption would go directly to the question of whether the parent and child interacted functionally as parent and child. To minimize the likelihood of litigation and reduce the burdens on the probate court, the proposal requires clear and convincing evidence to rebut the presumption.