IN RE: ESTATE OF Samuel Nicholas SMITH

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Court of Appeal, First District, Division 1, California.

IN RE: ESTATE OF Samuel Nicholas SMITH, Jr., Deceased. Virginia SNEED, Petitioner and Appellant, v. STATE of California, Objector and Respondent.

No. A065289.

Decided: June 26, 1995

James Lance Kaller, San Francisco, for petitioner and appellant. Daniel E. Lungren, Atty. Gen. and Yeoryios C. Apallas, Deputy Atty. Gen., San Francisco, for objector and respondent.

Virginia Sneed (appellant) appeals from a judgment finding that she has no standing to claim the estate of the intestate decedent, Samuel Nicholas Smith.   Appellant is the stepdaughter of the decedent's predeceased sister, Lorraine Dick (Smith).   The issue on appeal is whether appellant is precluded, as matter of law, from establishing one of the conditions to inheritance through her stepmother, i.e., that her stepmother would have adopted her, “but for a legal barrier” (Prob.Code, § 6408, subd. (e)), because it is undisputed that once appellant reached the age of majority no legal barrier to adoption existed.

FACTS

The decedent, Lorraine Dick's brother, died intestate.   Appellant filed a petition to determine entitlement to estate distribution, alleging that she was the sole heir, and was entitled to inherit through her stepmother, Lorraine, in accordance with former Probate Code section 6408, subdivision (e).1

Appellant alleged that her father and Aridea, her natural mother, divorced in 1944 when appellant was eight years old.   Custody was awarded to Aridea.   Appellant's father married Lorraine Dick, approximately one year later.   Lorraine “made it clear to” appellant that “she would have been happy to have legally adopted [appellant] ․ if she ever had the chance.”   No adoption proceedings were ever initiated because Lorraine, appellant's father, and appellant, knew Aridea would not consent.   Lorraine never had any children of her own, and treated appellant as her only child.   Her will provided that if her spouse should predecease her, her entire estate should go to appellant.

The State of California (hereinafter, the State) filed a Statement of Interest alleging that appellant had no standing as an heir, and seeking an order that the decedent had died intestate, “without leaving anyone to take his estate.”   The trial court agreed to first resolve the legal question whether pursuant to section 6408, subdivision (e) appellant must prove that a legal barrier to adoption continued to exist from the time she reached the age of majority until Lorraine's death.   The court granted the State's motion for summary judgment based on the undisputed fact that no legal barrier existed to adoption once appellant reached the age of majority.

ANALYSIS

Former Probate Code section 6408, subdivision (e) provides that:  “For the purpose of determining intestate succession by a person or his or her descendants from or through a foster parent or stepparent, the relationship of parent and child exists between that person and his or her foster parent or stepparent if (1) the relationship began during the person's minority and continued throughout the parties joint lifetimes, and (2) it is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.”

“Section 6408, a part of the revision of the statutes relating to wills and intestate succession, was drafted by and proposed to the Legislature by the California Law Revision Commission.   The initial presentation contained no reference to stepchildren except as they were officially adopted by the stepparent․  A later recommendation by the commission's probate consultant suggested the addition of [what would later become section 6408(e) ].   The consultant noted, under the proposed addition, provision would be made for ‘step- and foster children in very limited situations, with the necessary safeguards incorporated by treating the case like an adoption.’ ”   (Estate of Claffey (1989) 209 Cal.App.3d 254, 258, 257 Cal.Rptr. 197.)   This revision and others was made in response to the changing structure of the family, and its fundamental purpose was to “conform to what the testator probably would have wanted if he or she had made a will.”  (16 Cal.Law Revision Com.Rep. (1982) p. 2318.) 2

 The issue presented on this appeal is a very narrow one:  Does the undisputed fact that no legal barrier to adoption existed from the time appellant reached the age of majority until her stepmother's death, as a matter of law, preclude her from establishing that her stepmother “would have adopted [her] but for a legal barrier[?]”  (Ibid.)   For purposes of the summary judgment motion the trial court assumed, arguendo, that the other conditions for inheritance from or through a stepparent, i.e., that a parent-child relationship began during appellant's minority and continued to exist throughout their joint lifetimes, were sufficiently alleged in appellant's petition.

Only two cases have directly addressed the contention that evidence of the natural parent's refusal to consent is insufficient as a matter of law, and that the step or foster child must also prove that the “legal barrier” to adoption continued to exist even after the child reaches the age of majority, and they have reached opposite conclusions.   In Estate of Cleveland, (1993) 17 Cal.App.4th 1700, 22 Cal.Rptr.2d 590, the court held that an adult step or foster child must, with one limited exception, prove not only that a legal barrier to adoption existed during the child's minority, but also that a legal barrier existed during adulthood and until the step or foster parent's death.   (Id. at p. 1711, 22 Cal.Rptr.2d 590.)   By contrast in Estate of Stevenson (1992) 11 Cal.App.4th 852, 857, 14 Cal.Rptr.2d 250, the court upheld a judgment in favor of two step children, based on evidence that their natural mother refused to consent to adoption during their minority.  (Id. at pp. 865–866, 14 Cal.Rptr.2d 250.)

The trial court adopted the reasoning of Estate of Cleveland, supra, and accordingly granted the State's motion for summary judgment based upon the undisputed fact that no legal barrier to adoption existed after appellant achieved the age of majority.   We, however, find the reasoning of Stevenson, supra, 11 Cal.App.4th 852, 14 Cal.Rptr.2d 250, to be more consistent with the plain language and the intent underlying section 6408.

In Estate of Cleveland, supra, 17 Cal.App.4th 1700, 22 Cal.Rptr.2d 590, Andre McIsaac/Cleveland sought a share of the estate of James Cleveland.   Andre was the son of Esther McIsaac and they lived with the decedent when Andre was between 12 and 24 years of age.   Andre received some support from the decedent and was claimed as a dependent on his tax returns.  (Id. at pp. 1703–1704, 22 Cal.Rptr.2d 590.) 3  According to Esther McIsaac, decedent asked if he could adopt Andre but she had refused.   Andre filed a petition in probate court challenging the validity of a trust established at the time of the decedent's death, which left Andre, described as James Cleveland's “ ‘friend and godson,’ ” a specific gift of $10,000.   The petition alleged that documents creating the trust had been signed by the trustee, pursuant to a durable power of attorney while the decedent was in a coma.  (Id. at p. 1703, 22 Cal.Rptr.2d 590.)   The trustee moved for summary judgment contending that, as a matter of law, the alleged legal barrier to adoption, i.e., the natural's mother's refusal to consent, was removed when Andre reached the age of majority, yet the decedent made no attempt to adopt appellant in the remaining 16 years of his life.   The probate court granted the motion and the Cleveland court affirmed (id. at pp. 1703–1704, 22 Cal.Rptr.2d 590) reasoning that, “[t]he term, ‘but for’ as found in section 6408 subdivision (e) is plain and unequivocal in its meaning.   Under the statute, the failure to adopt an individual may be attributed to a legal impediment only if the legal impediment is the actual cause, or the cause in fact, of the failure to adopt․  The legal impediment must be the ‘sine qua non’ of the failure to adopt․  The test is whether the adoption would have occurred ‘but for’ the legal impediment.”  (Id. at pp. 1709–1710, 22 Cal.Rptr.2d 590, citation omitted.)   The court concluded that, “[t]he absence of the consent of a minor's natural parent to an adoption cannot constitute the actual cause of a failure of a decedent to adopt the individual, where a decedent fails to adopt the individual for many years after the individual reaches the age of majority.   There may be many reasons for the failure to adopt the individual as an adult․  [I]t may be that it seemed less important to adopt the individual at that point.   If so, that would weigh against the conclusion that a decedent considered the individual to be one of his or her ‘children.’   Perhaps there had been a change in the nature or quality of their relationship.   Perhaps the decedent was motivated to adopt the individual only to provide emotional and financial support during the individual's minority.   If a decedent wanted to provide such an adult with a share of his or her estate, the decedent could do so by adopting the individual, which would remove all doubt as to whether the decedent considered the individual to be his or her ‘child.’   If the decedent determined that the process of adoption is too cumbersome, expensive, or no longer necessary to achieve estate planning goals, he or she could also write a will to provide for the individual.   Where a decedent takes neither of these actions, it is fair to conclude that when many years pass without an adoption after the legal impediment ceases to exist, the decedent had other reasons for not effectuating the adoption.” 4  (Id. at p. 1710, 22 Cal.Rptr.2d 590.)

The Cleveland court acknowledged that its construction would have the practical effect of excluding most adult step and foster children from the application of section 6408, subdivision (e), because adult adoption is the exception rather than the rule.   It nevertheless concluded the statute itself did not limit the application of the, “would have adopted but for a legal barrier” language, to the period of minority.  (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1711, 22 Cal.Rptr.2d 590.)   The court further noted that not all adult step or foster children would be excluded under its interpretation.   Those who could establish a legal impediment that continued after the age of majority could nevertheless qualify.5  The court further created an exception to its rule that a legal barrier must exist after the child reaches the age of majority and until the step or foster parent's death:  If the step or foster parent dies “shortly after the claimant reaches the age of majority and an adoption could not reasonably have been accomplished during the interim,” a triable issue of fact may exist as to whether the step or foster child would have been adopted “but for” a legal barrier.  (Id. at pp. 1711, 1713, 22 Cal.Rptr.2d 590.)

In sum, under the Cleveland court's construction of section 6408, subdivision (e), if the step or foster child is an adult, evidence of the refusal of a natural parent to consent to adoption, is insufficient evidence, as a matter of law, that he or she would have been adopted “but for” a legal barrier.   An adult step or foster child must also prove that a legal barrier to adoption continued to exist from the time he or she reached the age of majority, until the time of the decedent's death.

By contrast, in Estate of Stevenson, supra, 11 Cal.App.4th 852, 14 Cal.Rptr.2d 250, the court specifically rejected the contention that evidence that the natural mother refused to consent to adoption while the children were minors was insufficient as a matter of law where no barrier to adult adoption is shown to exist.   In Estate of Stevenson, supra, 11 Cal.App.4th 852, 14 Cal.Rptr.2d 250, the stepchildren (hereinafter, “claimants”) sought a share of the estate of the woman who they had believed, until they reached the age of 30, to be their natural mother.   The decedent's natural children and grandchildren appealed a judgment in favor of the claimants.   At trial it was established that the claimants' father had divorced their natural mother when they were very young.   He and the claimants then lived together with the decedent for approximately five years.6  When the claimants were approximately eight years old their father moved out, married another woman, and took the claimants with him.   This marriage only lasted a few years.   The claimants believed their father's new wife to be their stepmother, and decedent to be their natural mother.   After the divorce, the claimants moved with their father to Japan.   They returned to live with decedent when the claimants were 15 and 16 years old.   Approximately a year later, their father was assigned to Vietnam and asked the natural mother if decedent could adopt the claimants.   The natural mother refused.   Nevertheless, decedent cared for the claimants in their father's absence.   The claimants continued to treat decedent as their mother even after they learned that she was not their natural mother, and the relationship continued until her death.  (Id. at pp. 857–858, 14 Cal.Rptr.2d 250.)   After a trial, a judgment was entered in the claimant's favor.

On appeal, the decedent's natural children contended that evidence that the claimants' natural mother refused to consent to adoption was insufficient to establish a “legal barrier,” because once the claimants reached the age of majority, they could have been adopted without their natural mother's consent.   The court held that section 6408, subdivision (e) does not require proof that a legal barrier existed at all times before the step or foster parent's death.   Instead, the step or foster child need only prove that a legal barrier existed at the time adoption was attempted.  (Id. at pp. 865–866, 14 Cal.Rptr.2d 250.)   The court reasoned that “so long as the circumstances suggest that the parent wanted to adopt the child but was prevented by a legal barrier, then we believe the statutory requirements are met․  It is not necessary that the legal barrier exist until the time the stepparent dies.”  (Id. at p. 866, 14 Cal.Rptr.2d 250.)

 Both the Stevenson and Cleveland courts observed that the plain language of section 6408, subdivision (e) offers little guidance on the question whether a legal barrier to adoption must exist not only at the time adoption is attempted or the intent to adopt expressed, but also throughout the remainder of the stepparent's life.   It states only that the stepchild must prove that he or she “would have been adopted but for a legal barrier” but does not specify when and for what period of time the legal barrier must exist.   When the meaning of the plain language is not clear, we must refer to the legislative intent to ascertain the meaning of the statute.  (Estate of Claffey, supra, 209 Cal.App.3d 254, 258, 257 Cal.Rptr. 197.)   The court in Estate of Cleveland, supra, 17 Cal.App.4th 1700, 22 Cal.Rptr.2d 590, held that evidence that the natural parent withheld consent is insufficient to create a triable issue of fact if the step or foster child is now an adult.   No doubt that construction of section 6408, subdivision (c) serves the court's stated goal of “injecting a strong dose of certainty,” into the application of Probate Code section 6408, subdivision (e).   It does so however, at the cost of precluding the claims of most adult step and foster children, even where the evidence of a parent-child relationship continuing throughout the parties' lifetime is overwhelming, and evidence of intent to adopt unequivocal, solely because of the absence of a legal barrier to adult adoption.   (Estate of Stevenson, supra, 11 Cal.App.4th 852, 866, 14 Cal.Rptr.2d 250.)

 We find the construction of section 6408, subdivision (e) adopted in Estate of Cleveland, supra, 17 Cal.App.4th 1700, 22 Cal.Rptr.2d 590 to be inconsistent with the legislative intent.   Under the Cleveland court's construction, evidence that the natural parent refused to consent is insufficient evidence of a legal barrier as a matter of law unless the step or foster child is still a minor, or has only recently attained the age of majority.   Yet, the Law Revision Commission Comment on section 6408 explains that, “[s]ubdivision (e) applies, for example, where a foster child or stepchild is not adopted because a parent of the child refuses to consent to the adoption.”  (Emphasis added.)   We infer that the Legislature specifically intended section 6408, subdivision (e) to apply in situations where a stepparent performs the role of a parent during the child's minority, yet is unable to adopt because the natural parent refuses to consent.  (See, e.g., Estate of Claffey, supra, 209 Cal.App.3d at p. 254, 257 Cal.Rptr. 197.)   The Cleveland court's construction would, in most cases, preclude the application of section 6408, subdivision (e) in precisely these circumstances unless the child was still a minor when the step or foster parent dies.   Moreover, if, as the Cleveland court suggests, section 6408, subdivision (e) applies primarily when the child is still a minor, or has only recently reached the age of majority when the step or foster parent dies, the Legislature would not also have required proof that the parent-child relationship continued throughout “ ‘the parties joint lifetimes.’ ”   Reading the statute as a whole, we conclude that, assuming arguendo there is sufficient evidence that the step or foster parent “would have adopted” the child, then evidence that the natural parent refused to consent is sufficient evidence of a “legal barrier” to create a triable issue of fact.  (Estate of Stevenson, supra, 11 Cal.App.4th 852, 859, 14 Cal.Rptr.2d 250.)   Evidence that a legal barrier to adoption continued to exist from the time the child reached the age of majority until the step or foster parent's death is not required, although it may be a factor to weigh in making the factual determination whether the step or foster parent would have adopted the child “but for a legal barrier.”   The statutory requirement that the step or foster child also prove that the parent-child relationship that began during the child's minority and continued throughout adulthood and until the step or foster parent's death, insures that the statute will not apply in situations where, after the child becomes an adult, the relationship changed, and the step or foster parent would not have intended the step or foster child to be treated as a “child.”   Therefore, the undisputed fact that no legal barrier to adoption existed after appellant attained the age of majority, does not as a matter of law preclude her from proving that she “would have been adopted, but for a legal barrier.”   (Estate of Stevenson, supra, 11 Cal.App.4th at p. 866, 14 Cal.Rptr.2d 250.)

Although Estate of Stevenson, supra, is the only case directly supporting our holding, the decision in Estate of Lind (1989) 209 Cal.App.3d 1424, 257 Cal.Rptr. 853, indirectly supports it.   In Lind, the appellant had been raised by foster parents, and resided with them from shortly after birth until he was drafted into the army.   The foster parents always referred to him as their son, and he believed he had been adopted.   He learned that around the time he was drafted into the Army his foster parents had some adoption papers made out, and that they attempted to change his surname on his birth certificate to theirs but their request was refused by the State without explanation.  (Id. at p. 1429, 257 Cal.Rptr. 853.)   He discovered he had not been adopted only after his foster parents died.   The Lind court observed that, at the time of the attempted adoption, the foster child was an adult and the law then prevented adult adoption.   This, the court held, was a sufficient allegation of a “legal barrier.”   However, under Estate of Cleveland, supra, 17 Cal.App.4th 1700, 22 Cal.Rptr.2d 590, this foster child would have been barred from making any claim under section 6408, subdivision (e), because the legal barrier to adult adoption was eliminated when the law was changed 10 years later.  (Id. at p. 1434, 257 Cal.Rptr. 853.)   Thus, under Cleveland, he would have had to prove that some other barrier to adult adoption then existed, or that his foster parents died before the law changed.

The facts of Estate of Lind, supra, 209 Cal.App.3d 1424, 257 Cal.Rptr. 853, illustrate how the Cleveland court's requirement that an adult step or foster child establish a legal barrier existed throughout adulthood until the death of the step or foster parents would preclude application of section 6408, subdivision (e) even in situations where the evidence of a parent child relationship, an attempt to adopt, and a legal barrier which prevented adoption, are very strong.   We decline to adopt an interpretation of the statute that would preclude its application in so many situations in which the Legislature intended it to apply.

The Cleveland court believed its restrictive construction of section 6408, subdivision (e) was necessary because of the enormous potential for sham and marginal claims that could be brought under section 6408, subdivision (e).  (Estate of Cleveland, supra, 17 Cal.App.4th at pp. 1710–1711, 22 Cal.Rptr.2d 590.)   Indeed, the facts of the Cleveland case may have influenced the court's construction of the statute, because Andre was the son of the decedent's mistress, and therefore not a stepchild, and the question whether he alternatively qualified as a “foster child” remained to be resolved.   Moreover, Andre was attempting to set aside a trust in which the decedent specifically expressed the intent that Andre receive a $10,000 gift, so that he might succeed to a larger share by intestate succession.  (Id. at p. 1703, 22 Cal.Rptr.2d 590.)   No doubt the court was troubled by the possibility that section 6408, subdivision (e) was so vague that it created an incentive for step and foster children to make claims upon a step or foster parent's estate that the decedent would never have intended.

Similarly, in this case the attorney general emphasizes the weakness of appellant's evidence of a “parent-child” relationship, when advocating that we adopt the Cleveland court's construction of section 6408, subdivision (e).   The solution, however, is not to interpret the statutory requirement of a “legal barrier” to adoption so narrowly that it would exclude virtually the entire class of adult stepchildren, many of whom otherwise had the type of relationship with their step or foster parent that the Legislature intended to recognize.   Instead, appellant must be required on remand to meet the heavy burden of the other evidentiary showings required by section 6408 which provide substantial protection against such marginal claims.   For example, the requirement that the relationship began during the child's minority requires more than a mere showing that the relationship of stepchild and stepparent formed by marriage.  (Estate of Claffey, supra, 209 Cal.App.3d 254, 258, 257 Cal.Rptr. 197.)   Nor is it sufficient to prove that a typical stepchild—stepparent relationship existed.  (Id. at p. 257, 257 Cal.Rptr. 197.)   Instead, the evidence must show that a “family relationship” equivalent to that of parent and child existed.  (Id. at p. 259, 257 Cal.Rptr. 197.)   The courts may look for guidance to existing common law, such as the law defining de facto parents (see, e.g., In re B.G. (1974) 11 Cal.3d 679, 693, 114 Cal.Rptr. 444, 523 P.2d 244), in identifying the factors to be considered in determining whether such a relationship existed.  (Estate of Claffey, supra, 209 Cal.App.3d 254, 258, 257 Cal.Rptr. 197.)   Appellant will have particular difficulty proving that such relationship existed in light of the fact that she never lived with her stepmother and her father, after her parents divorced.   Although the courts have rejected the contention that evidence of the relationship of parent-child requires uninterrupted cohabitation, (see Estate of Stevenson, supra, 11 Cal.App.4th 852, 861, 14 Cal.Rptr.2d 250), at least one court has observed that “[w]here the child has lived with one natural parent rather than the other natural parent and the stepparent any alleged relationship is necessarily more difficult to establish.”  (Estate of Claffey, supra, 209 Cal.App.3d at p. 259, 257 Cal.Rptr. 197.)

 In addition, the step or foster child must show by “clear and convincing evidence” that he or she “would have [been] adopted ” but for a legal barrier.   The mere fact that a legal barrier is shown to have existed, does not establish that the stepparent intended to adopt the child, or that the reason for not adopting the child was the existence of a legal barrier.   Obviously a formal attempt to adopt, such as the preparation of a petition is the best evidence of such intent.  (See, e.g., Estate of Lind, supra, 209 Cal.App.3d 1424, 1433, 257 Cal.Rptr. 853.)   However, the courts have also found that statements of the stepparent expressing intent to adopt, are admissible as circumstantial evidence of an agreement to adopt, or under the family history exception to the hearsay rule.  (Estate of Stevenson, supra, 11 Cal.App.4th 852, 863, 14 Cal.Rptr.2d 250;  Estate of Lind, supra, 209 Cal.App.3d 1424, 1436, 257 Cal.Rptr. 853.)   Here again, the weight and sufficiency of appellant's declaration that her stepmother “made it clear to her” that she would have adopted appellant had she had the “chance” has not been determined.

CONCLUSION

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.   Costs to appellant.

FOOTNOTES

1.   In 1993, section 6408, subdivision (e) was renumbered as Probate Code section 6454 (1993 Cal.Stat. ch. 529, § 5).   The provisions of that section were otherwise unchanged.   The parties and several of the relevant cases, however, refer to the former section number 6408 that was in effect when the petition was filed.   For ease of reference, we shall do the same.

2.   Section 6408, subdivision (e) has since been criticized as unduly restrictive by some, (see Margaret Mahoney, Stepfamilies in the Law of Intestate Succession and Wills, 22 U.C. Davis Law Review 917, 930–932), and by others, as a misguided expansion of the rights of step and foster children that should be repealed.  (See Robin Meadow and Jeffrey M. Loeb, Heirs Unapparent, Los Angeles Lawyer (June 1994) p. 34.)   The attorney general shares the opinion that the policy underlying the statute was ill-considered and that the statute should be repealed.   The task before this court, however, is to interpret the statute based on its language and the Legislature's intent.   Only the Legislature may reconsider the wisdom of the policy underlying it.

3.   It was stipulated that James Cleveland had never married Esther, and therefore Andre was not a stepchild.  (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1704, 22 Cal.Rptr.2d 590.)   Nevertheless, the parties stipulated, for purposes of the summary judgment motion that Andre was a “foster child.”  (Id. at p. 1713, 22 Cal.Rptr.2d 590.)

4.   In this case, appellant's stepmother did in fact provide for appellant in her will.   The Cleveland court's suggestion that a stepparent should either adopt their adult stepchild or provide for them in a will, overlooks the fact that section 6408, subdivision (e) was created precisely to address the situation in which these actions are not taken.   Moreover, even where, as here, the stepparent provides for the stepchild in his or her will, such provision confers no rights to inherit “through” the stepparent, as provided in section 6408, subdivision (e).

5.   The Cleveland court listed three legal impediments to adult adoption:  “failure to consent by the adopting person's spouse, the adoptee's spouse, or the adoptee.”  (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1708, fn. 10, 22 Cal.Rptr.2d 590.)

6.   Although the parties agreed that, at some time, the decedent did marry the claimants' father, no evidence of marriage was placed in the record.   Nevertheless, their status as either step or foster children was not disputed on appeal.

STEIN, Associate Justice.

STRANKMAN, P.J., and DOSSEE, J., concur.