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Law School Case Brief

Estate of Burden - 146 Cal. App. 4th 1021, 53 Cal. Rptr. 3d 390 (2007)


The requirement in California Probate Code, that a father of a child born out of wedlock acknowledge his paternity of the child in order for that child to inherit under the laws of intestate succession does not require the acknowledgement be a witnessed writing made after the child's birth. There are no such requirements on the face of the statute. Nor does the history of the statute compel a conclusion that such requirements should be read into the statutory language.


Defendant Agnew objected in a probate proceeding claiming that he was entitled to one-half of the decedent Burden’s estate under the laws of intestate succession because he submitted clear and convincing evidence that the decedent had openly held him out as his own child pursuant to the California Probate Code. The trial court entered an order finding that the objector was entitled to an equal share of the decedent’s estate. Tara Burden, who is decedent’s daughter, appealed, asserting that a showing greater than that made by the objector was necessary to meet the statute’s requirements. 


Does the right to intestate succession in California require the judicial determination of paternity?




The Court held that the acknowledgement requirement was met because the stipulated facts showed that the decedent's father admitted paternity in a court proceeding. The court found significant the absence of evidence indicating the father did not confess knowingly and voluntarily, or that he later denied paternity or knowledge of the child to those who were aware of the circumstances. Although the record established that the father did not speak of the decedent to his wife and other child, there was no evidence suggesting he sought to actively conceal the facts from them or anyone else.

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