California Estate Lawyer Blog

Recall that my client's half-sister now claims that they are not related ... and counsel and I agreed to use a DNA laboratory to determine the likelihood of relationship. Problem: the presumed natural father is dead and was cremated ... where does my client get a sample of his DNA?

Like most everywhere that I had ever heard of, a death certificate is issued in California for every person that dies. The death certificate is signed by a treating physician, if the person had one before dying. In this case, the natural father died of lung cancer. I had a death certificate, therefore I could track down the doctor. Once I located him, I served him with a subpoena (pursuant to the discovery available to me in litigation California Code of Civil Procedure §2020.410) to produce any DNA material that he might have from the natural father. I also served a notice to produce (California Code of Civil Procedure §2031.010) DNA material on my client's half-sister, thinking that perhaps there was a comb with hairs on it.

No luck... neither witness nor party had any DNA. I kept looking. I discovered that the natural father had received some treatments at Cedar-Sinai Medical Center in Los Angeles. After serving a subpoena on the hospital's pathology lab, they acknowledged having biopsy tissue that could be used for DNA sampling.

In my next post I will detail what happened and how the case was resolved ...

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Discovery , Intestacy

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So here is my client, fighting her half-sister in Superior Court of Los Angeles County North East District, over whether she qualifies an heir of her natural father's estate under California Probate Code §6451 because she had been adopted away as an infant. I am interviewing witnesses, gathering evidence, and opposing counsel drops this one on me ...

Essentially, he says that he is going to claim on behalf of his client that my client's mother was a "loose" woman and maybe my client is not truly an heir of her dead father, because maybe he wasn't the natural father of my client after all ... Forget that they looked alike, shared common birth marks, and that he told her he was her father, just accept that he could have been mistaken all those years. OK, and is there a bridge in Brooklyn that I can sell you?

Opposing counsel and I agree that in the 21st century, the way to solve this dilemma is by having our client's submit to DNA testing. One problem; the father's body has been cremated; what do we use as a source of DNA?

I'll tell you where we found it in the next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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So here is my client; her natural father died without a will and her half-sister claims the entire estate, alleging that my client did not satisfy the special circumstances required under California law for an adopted away child to inherit from a natural parent (California Probate Code §6451).

Those special circumstances (both of which must be met) are that:

"(1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person's birth."(California Probate Code §6451 subpart a (1)).

"(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents. ((California Probate Code §6451 subpart a (2) )".

My client definitely satisfied part 2, as she was adopted by her step-father, the spouse of her natural mother. The argument was over part 1. Just what did it mean that they "lived together at any time as parent or child"?

Then came the next curve ball ... see it in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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As set forth previously, my client's mother was not married to my client's natural father. My client's mother did marry however; and her new husband, the step-parent of my client, adopted her (a "step-parent" adoption). In the world of intestacy (i.e. dying with a will), such an adoption has consequences.

In general, when someone dies without a will and without a surviving spouse or domestic partner, the children of the person who died will inherit (California Probate Code §6402). Absent special circumstances, this will include children that the person who died adopted prior to death (California Probate Code §6450).

But what if the person who died is the natural father (not the adopting father) of a person who was adopted away while in infancy, and that person died without a will? That was the situation in this case. California Probate Code §6451 states that a child who has been adopted by a step-parent may not inherit from the intestate estate of a natural parent, except under specified circumstances.

I'll discuss those circumstances in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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As I described in my prior post, my client's natural father had died without a will (i.e. California Probate Code §88) and her half-sister from her father's prior marriage had petitioned to be appointed the personal representative of the estate (California Probate Code §8400). The surprise came when my client's half-sister petitioned the court to be declared the sole heir of my client's natural father.

Some more pertinent facts: My client's mother was never married to her natural father. However, my client's mother did marry, and my client was adopted by her mother's husband. In California this is referred to as a "step-parent" adoption. This is an adoption where a natural parent with custody of the child (in this case, the mother) marries, and her husband (the step-father) adopts the child as his own.

Such an adoption has legal ramifications which I will discuss in the next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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As I mentioned in my last post, my client was the daughter of a man who had recently died She had a half-sister, who was the child of her father and another woman. The difference was that the dead father had been married to the half-sister's mother before my client was born, divorcing after a few years, while my client's mother had not been married to my client's dead father. Also, the dead father died without a will, necessitating a petition in probate court (California Probate Code §8000). In this case, it was the half-sister of my client who filed the petition in Superior Court of Los Angeles County, North East District.

My client learned of her father's death only after she received the notice that was required by law (California Probate Code §8110) to be given to her when her half-sister petitioned the court to be the personal representative of their mutual father's estate, pursuant to California Probate Code §8400.

Once appointed as personal representative, my client's half-sister filed a petition with the court to have my client's half-sister declared to be the only legal heir to my client's father's estate.

I'll describe what happened in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Intestacy

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When a person dies without a will (California Probate Code §88) in California they are said to have died "intestate". Who inherits is then determined by the laws of intestate succession (California Probate Code §240). Generally, if there is no surviving spouse, the children of the person who died will inherit the estate.

In this case, my client's mother partied with my client's natural father during the '60's. As a result of the partying, my client was born, but my client's mother and natural father were never married to each other. Prior to my client's birth, her natural father had been married to another woman, who also gave him a child. That child's mother and my client's natural father were divorced after a few years of marriage and before my client was born..

My client's natural father died recently, without a will, intestate. He owned a home and had some bank accounts, leaving a respectably sized estate. However, without a will, a probate was required to appoint a personal representative who could then transfer the property (California Probate Code §8000).

I'll describe what happened in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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