Estate of Amine Britel (2015) grapples with the term “openly held out” in subdivision (b)(2) of Probate Code section 6453 for the purpose of establishing a parental relationship (paternity) and ultimately the heir to a decedent’s estate. An alleged father dies intestate (meaning he died without executing a will) and without being legally identified as the child’s parent. Two persons compete for Amine Britel’s estate: Amine’s mother; and, a ten-year old girl alleged by the girl’s mother to be Amine’s daughter. The appeal of the probate court’s decision was worth the time, effort, and expense based on at least one if not two significant arguments. The mother of the 10-year old girl had to prove that her daughter is Amine’s legal child and therefore Amine’s sole heir.
Before getting to the facts, so that you can refer back to it, I provide the relevant portion of section 6453:
For the purpose of determining whether a person is a “natural parent” as that term is used in this chapter:
(a) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code).
(b) A natural parent and child relationship may be established pursuant to any other provisions of the Uniform Parentage Act, except that the relationship may not be established by an action under subdivision (c) of Section 7630 of the Family Code unless any of the following conditions exist:
(1) A court order was entered during the father’s lifetime declaring paternity.
(2) Paternity is established by clear and convincing evidence that the father has openly held out the child as his own. [Emphasis added.]
(3) It was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence.
In 1999, Amine Britel and Jackie Stennett met while enrolled at Harvard Business School and became intimate. They graduated in the early summer of 2000. Jackie moved to Atlanta, and Amine moved to Newport Beach, California. In August, Jackie contacted Amine and told him she was pregnant. The next day, Amine emailed her that he was “devastated” by the news, could never share it with his parents, and that a child out of wedlock was antithetical to his Muslim religion and culture. He wrote that a child born out of wedlock would bring him “total shame,” burdening him for the rest of his life. Amine continued:
Please understand that I do love you but I am just not ready to be a father right now. I want us to have a child through a legitimate marriage and not outside of wedlock. We need to live together, learn about each other, and then make a committment [sic] for life. I perceive marriage as a very serious engagement. I was devastated for the past two years as a result of a bad marriage. In all fairness, I believe I should be a part of this decision. . . . It is important for us to meet to discuss this issue as soon as possible and find a suitable arrangement for both of us.
Shortly thereafter, Jackie visited Amine in California for three or four days rather than for the week that she had planned. She then returned to Georgia. Jackie and Amine communicated by telephone five to ten times within the next few days until Amine told Jackie not to contact him again and that he wanted neither she nor the baby to contact his family.
Amine told his best friend, Youssef Choukri, what had happened and the shame it would bring to his “highly regarded” family in Morocco and how it might trigger his disinheritance. Also, he told Youssef that he wasn’t sure Jackie was actually pregnant. He mentioned that he had asked Jackie to get an abortion if she was pregnant, and later that year or in early 2001 he told Youssef that Jackie indeed had obtained an abortion. According to Youssef, he and Amine never discussed the issue again. (At trial, Jackie testified she never informed Amine that she had obtained an abortion.) And, although he was close to his Moroccan family, Amine never told any of them about the pregnancy.
Jackie gave birth to a daughter, A.S., in February, 2001. Amine was not named as the father on the birth certificate, and Jackie never asked any court to determine Amine to be A.S.’s father. For his part, Amine never provided any financial support and never met nor had any contact with A.S. Jackie complied with Amine’s request and never contacted him for the next six years. Then, in November, 2006, she emailed Amine, telling him that A.S. wanted a relationship with her father. Amine did not respond, so Jackie called him. She said A.S. asked about him and wanted him in her life. Amine was “terse and cold” over the phone. He asked that Jackie not contact him again, and he told her that he wanted nothing to do with either of them. This was Jackie’s last contact with Amine.
Although I don’t find in the opinion when or under what circumstances it occurred, at some point Amine submitted to DNA testing.
Four years later, in February 2011, Amine was 41 years old and a world-class cyclist. He was killed by a drunk, text-messaging driver in broad daylight while riding his bicycle. Amine died with no spouse nor domestic partner and without having prepared a will.
There were competing petitions filed in the probate court seeking the right to administer Amine’s estate and a determination of Amine’s heirs. Jackie, A.S.’s mother, whom she alleged was Amine’s daughter, petitioned to administer the estate and establish A.S. as the heir. As Amine left no will, if Jackie could establish Amine as A.S.’s natural parent, Amine’s entire estate would pass to A.S. under Probate Code section 6402(a). Amine’s adult sister, Mouna Britel, also petitioned to administer the estate. Mouna’s petition named their mother, Rhita Britel, as Amine’s surviving parent and sole heir – if A.S. was not proved to be Amine’s child, then Amine’s entire estate would pass to Rhita under Probate Code section 6402(b).
Despite Mouna’s objection as to its admissibility, the trial court received DNA evidence establishing Amine as A.S.’s father. Although DNA evidence would seem to be relevant to a determination of status as a “natural parent,” DNA evidence is irrelevant to the inquiry under section 6453(b)(2). (Estate of Sanders (1992).) It is my opinion that he trial court should not have received into evidence the DNA testing results but instead moved directly to the only relevant proof: whether Jackie had met her burden of proof “by clear and convincing evidence” that Amine “openly held out” A.S. as his child under Probate Code section 6453(b)(2). (Jackie could not have relied on subdivision (b)(1) of Probate Code section 6453 because section 6453 is the exclusive means of determining paternity and no judgment of paternity existed. Section 6453’s exclusivity also forecloses a presumed “natural parent” status under Family Code section 7611 (based on DNA evidence, among other things). Likewise, because Amine did not pass away before A.S.’s birth (the circumstance addressed by subdivision (b)(3)[impossibility]), it was certainly possible that he openly held out A.S. as his child and defeats a reliance on subdivision (b)(3). Hence, Probate Code section 6453(b)(1) and (3) were inapplicable.)
Urged by Jackie, the trial court followed the then-legal precedent (Estate of Burden (2007)) that interpreted “openly held out” as synonymous with “acknowledge,” and that “acknowledge” means “concede to be real or true . . . [or] admit.” The trial court commented that “if it wasn’t for the Burden case, the court would be looking at the words of the statute itself, whether Amine Britel openly held out [A.S.] as his own. . . . And the answer to that would be a clear no. . . .” Still, the trial court found Jackie had not established her burden by clear and convincing evidence (for an explanation of this phrase, see Rebuttable Presumptions and Standards of Proof). It found Jackie’s testimony “not convincing,” her witness not credible, and conversely that Youssef’s testimony was credible. Amine had not openly held out A.S. as his own child. It denied Jackie’s petitions to establish paternity and therefore heirship and for letters of administration, which resulted in Amine’s sister’s petition to administer the estate being granted and his mother, Rhita, being determined as Amine’s sole heir.
Jackie appealed, arguing, among other things, the semantic analysis from Estate of Burden as legal precedent: the evidence showed Amine privately admitted paternity and therefore held out A.S. as his daughter within the meaning of Probate Code section 6453(a)(2). Thus, according to Jackie, the trial court should have concluded A.S. is Amine’s sole heir. Additionally, Jackie argued the DNA testing results admitted into evidence were conclusive proof of paternity and that the statutory scheme is antiquated and violates equal protection if such evidence is not admitted.
Amici curiae also argued the statutory scheme violates equal protection: the different outcomes under (i) subdivision (a) of Probate Code section 6453, which, for example, legally presumes the “natural parent” status of a married man (to a child borne of his spouse during the marriage or within 300 days of the marriage being terminated or legal separation) who leaves no will as opposed to (ii) subdivision (b) which does not allow such a presumption for a child, like A.S., of an unmarried man who leaves no will, violates equal protection under the state and federal Constitutions. Hence, according to Amici, equal protection requires such evidence be permitted.
Disposition of the estate of a decedent who leaves no will is “governed entirely by statute.” A person’s heirs are those “whom the law appoints to succeed at the decedent’s death to his or her estate in case of intestacy, by virtue of the statutes of succession.” Under Probate Code section 6450, “’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 Britel appellate court summarily dispatched – in a footnote no less – Jackie’s seemingly-good but legally-flawed argument that the DNA evidence (despite arguably having been improperly admitted at trial) conclusively presumed A.S. is Amine’s “issue.” (Probate Code section 50 defines “issue” as all lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent.” Probate Code section 54 defines “parent” as “any individual entitled to take as a parent under this code by intestate succession from the child whose relationship is involved,” and section 26 defines “child” as “any individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved.” Where there is no surviving spouse and the relationship of parent and child is proved, then the entire intestate estate passes to the decedent’s issue. (Probate Code section 6402(a).) If, however, no surviving spouse nor issue exists, then the entire intestate estate passes to the decedent’s “parent or parents.” (Probate Code section 6402(b).))
Jackie jumped to the conclusion that A.S. is Amine’s “issue” under Probate Code section 50 without having proved “the relationship of parent and child . . .” Jackie failed to apply section 6453, which provides “the exclusive means for determining paternity in intestacy proceedings, other than fatherhood by adoption” (Estate of Chambers (2009)), i.e., to prove by clear and convincing evidence the parent-child relationship between Amine and A.S. under subdivision (b)(2) of section 6453. In other words, DNA testing results are no substitute for proof of holding the child out as one’s own.
With a clear but necessarily long explanation (which I condense for brevity here), the appellate court dealt with Jackie’s argument that “openly held out” under Estate of Burden was synonymous with “acknowledge,” and that “acknowledge” means “concede to be real or true . . . [or] admit.” Jackie argued the term “openly held out” under section 6453(b)(2) includes a private concession. Even assuming the Burden court thought a private acknowledgment amounted to openly holding out a child as one’s own, the Britel appellate court thought the statement was “arguably dictum” rather than legal precedent the court was required to follow: “[i]f the Burden court intended by this statement to hold that a private admission of paternity without more is sufficient to satisfy the ‘openly held out’ requirement, we respectfully disagree.” [Emphasis added.] In other words, there’s a difference between a “private acknowledgment” of paternity and holding out “in open view” a child as one’s own. The appellate court further distinguished Burden because the father in Burden did more that privately acknowledge the child by holding out the child as his own in open view: everyone in the family knew about the father-son relationship.
Additionally, the appellate court found other bases on which to distinguished Burden. The Burden court erred when it wrote that “numerous” appellate opinions have interpreted Family Code section 7611(d)’s use of the term “acknowledge” as synonymous with “openly holding out.” “Acknowledge” isn’t even in section 7611(d), which used the phrase “openly holds out,” similar to Probate Code section 6453(b)(2). Secondly, three of the six cases on which Burden relied for its statutory construction specified that section 7611(d) requires a public acknowledgment.
Likewise, the other three of six cases were factually different. In the fourth, the father was present at the child’s birth, was listed on the birth certificate, and was represented by the mother “to the world” as the father. In the fifth case, the opinion briefly mentions “receiving and acknowledging” as a shorthand description of Family Code section 7611(d)’s language in a footnote, but it does not address whether a private admission of paternity satisfies the “openly held out” standard. The last case on which the Burden court supported its interpretation does use “acknowledged” as a synonym for “openly held out” in holding that Family Code section 7611(d) did “not have any reasonable application to surrogacy cases,” but this last case does not address whether a private admission of paternity is sufficient.
The Burden court also based its statutory construction on section 6452 as then in effect, where a natural parent could not inherit from a nonmarital child unless the parent had “acknowledged the child” (whether publicly or privately) and contributed to the child’s support or care. The Britel appellate court thought section 6452 simply “demonstrates the Legislature uses the word ‘acknowledge’ with no adverbs when appropriate.” Further, Burden supported its definition of “openly holds out,” by noting that, prior to 1993, the predecessor to section 6453(b)(2) required the father to “’openly and notoriously [hold] out the child as his own.’” The Britel appellate court explained that by deleting “notoriously,” the Legislature simply discarded an outdated, pejorative adverb for having a child out of wedlock.
Jackie also argued that the law governing child support should apply to a nonmarital child’s inheritance. Because a man cannot avoid child support law, he should therefore not be permitted to avoid the law of intestate succession. The Britel appellate court noted that the law of intestate succession is distinct from the law of child support law: at common law, the courts had no power to direct the payment of money out of a decedent’s estate. Nowadays, intestate succession is controlled by statute, and only two relevant statutes authorize such payments: 1) Probate Code section 6540(a)(2), providing for a family allowance during administration of the probate estate; and 2) Family Code section 3952, providing that where “a parent chargeable with the support of a child dies leaving the child chargeable to the county,” the county “may claim provision for the child’s support from the parent’s estate.” In contrast, “the obligation of a father to support his minor child which is fixed by divorce decree or property settlement agreement, does not cease upon the father’s death, but survives as a charge against his estate.” (Taylor v. George (1949).) Hence, the trial court in Britel has no authority to order such payments.
The appellate court went on to find substantial evidence that Jackie failed to prove Amine openly held out A.S. as his child.. Amine never made an unconcealed affirmative representation of his paternity in open view.
Finally, what I thought was Jackie’s more colorful and strongest argument relied on equal-protection grounds. Jackie argued that Probate Code section 6453 violates state and federal equal protection under their respective Constitutions because marital children enjoy a rebuttable presumption of a natural parent-child relationship under section 6453(a)[“A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act . . .”] while nonmarital children do not, despite the accuracy of modern DNA testing that eliminates the risk of fraudulent claims. Because of DNA testing, Jackie argued, Probate Code section 6453(b)(2) no longer “effectuates the state’s important interests in carrying out an intestate decedent’s likely intent and in doing so efficiently.”
The appellate court engaged this argument with intermediate-level scrutiny under both the federal and California Constitutions: “‘Whether a statutory classification is unconstitutional ‘depends upon the character of the discrimination and its relation to legitimate legislative aims.’ (Mathews v. Lucas (1976) 427 U.S. 495, 503-504.) The United States Supreme Court has generally applied an intermediate level of scrutiny to discriminatory classifications based on illegitimacy. (Clark v. Jeter (1988) 486 U.S. 456, 461 (Clark); Astrue v. Capato (2012) ___ U.S. ___, ___ [132 S. Ct. 2021, 2033].) ‘To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.’” “[P]erhaps in part because the roots of the discrimination rest in the conduct of the parents rather than the child, and perhaps in part because illegitimacy does not carry an obvious badge, as race or sex do, [the] discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and [African-Americans]. (Mathews, at p. 506.) . . . Although ‘illegitimacy is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis of statutory differentiations,’ the Supreme Court has ‘concluded that the analogy [is] not sufficient to require ‘our most exacting scrutiny.’ (Trimble v. Gordon (1977) 430 U.S. 762, 767 . . .).”
The appellate court distinguished two Supreme Court cases cited by Jackie. The first, Clark v. Jeter (1988) 486 U.S. 456, pertained to statutes of limitation in paternity actions, not intestate succession statutes, in which different state interests are at play. “Paternity actions enforce ‘the State[‘s] interest in ensuring that genuine claims for child support are satisfied” (Clark v. Jeter, at 462) . . . “‘and that a child may have a relationship with his or her father. . . .'” (County of Shasta v. Caruthers (1995).) By contrast, the appellate court wrote, “California’s intestate succession laws further the state’s interest in carrying out the likely intent of a decedent, at the time of death, in the distribution of his or her estate.”
Jackie’s second Supreme Court cite, Lalli v. Lalli (1978) 439 U.S. 259, involved a constitutional challenge to a New York statute that allowed a nonmarital child to inherit from an intestate father only if a court had issued a paternity decree during the father’s lifetime. . . . [T]he statute ‘was intended to soften the rigors of previous law which permit illegitimate children to inherit only from their mothers.’ . . . Although the overarching purpose of the proposed statute was ‘to alleviate the plight of the illegitimate child,’ [the commission] considered it necessary to impose the strictures of [the challenged statutory provision] in order to mitigate serious difficulties in the administration of the estates of both testate and intestate decedents. . . .” In Lalli, a divided Supreme Court held the statute was “substantially related to the important state interests the statute is intended to promote.” The Supreme Court therefore found no violation of the Equal Protection Clause using intermediate-level scrutiny, notwithstanding some unfairness would result.
Citing Campbell ex rel. Campbell v. Apfel (9th Cir. 1999) 177 F.3d 890, 894, the appellate court noted Section 6453 is even more generous than the New York statute scrutinized in Lalli. While subdivision (b)(1) is similar to the New York statute, subdivisions (b)(2) and (b)(3) increase the number of ways the relationship of parent and child can be proved.
Amici argued the Probate Code’s statutory scheme violates the California Constitution’s equal protection rights of nonmarital children who can prove paternity using DNA tests. The differential treatment of nonmarital children who can prove paternity using DNA tests is subject to strict-scrutiny analysis under the California Constitution. (Darces v. Woods (1984)[California “equal protection clause is ‘possessed of an independent vitality’ from the Fourteenth Amendment”].) (For a statute to pass strict-scrutiny analyssis, the state must show a compelling governmental interest and the statute must be narrowly tailored in carrying out that interest].) The appellate court distinguished the highest-level scrutiny in Darces at least in part because it involved citizen children who were eligible for government assistance but who lived with undocumented siblings. National origin and ancestry, two historically-disfavored traits, increase the level of scrutiny. The court added that Probate Code section 6453 treats nonmarital children who can prove paternity using DNA tests identically to nonmarital children who cannot prove paternity using DNA tests. To do otherwise would raise independent equal protection concerns.
Regardless whether section 6453 is discriminatory to some extent, the appellate court held Probate Code section 6453 “effectuates the state’s important interests in carrying out an intestate decedent’s likely intent and in doing so efficiently” such that it satisfies equal protection.
For now, the appellate courts are not budging on the constitutionality of the intestacy statutes based on intermediate-level scrutiny, although they may unfairly differentiate between groups of children.