Dear danene-ga;
Thank you for allowing me to answer your interesting question. We
cannot provide legal advice in this forum (see disclaimer) but in my
opinion it does appear that you can, at the very least, CLAIM that you
are a legal heir. In other words, you appear to have a legal basis for
challenging any instrument that fails to recognize you as a legal
heir:
CALIFORNIA CODES
PROBATE CODE
SECTION 6450-6455
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.
(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.
(3) It was impossible for the father to hold out the child as his own
and paternity is established by clear and convincing evidence.
According to (a)(2) ?Paternity is established by clear and convincing
evidence that the father has openly held out the child as his own.?
You appear to meet the criteria because the ?father? did noting to
contest the issue thereby holding for all intents and purposes that
you are indeed his natural child.
??.
Even if you were a step-child as opposed to ?natural issue?, the
matter still seems clear. If the father/child relationship between you
extended from the time your were a minor until the ?father?s? death,
you still meet the criteria as a legal heir:
6454. For the purpose of determining intestate succession by a person
or the person's issue from or through a foster parent or stepparent,
the relationship of parent and child exists between that person and
the person's foster parent or stepparent if both of the
following requirements are satisfied:
(a) The relationship began during the person's minority and continued
throughout the joint lifetimes of the person and the person' s foster
parent or stepparent.
CALIFORNIA CODE
http://www.megalaw.com/ca/cacodelink.php?codelink=http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=84026720237+0+0+0&WAISaction=retrieve
?..
On the other hand, if the decedent intentionally fails to provide your
you in his will that might be another issue altogether. In other
words, if you have been intentionally disinherited your claim might
not be as strong:
21621. A child shall not receive a share of the estate under Section
21620 if any of the following is established:
(a) The decedent's failure to provide for the child in the decedent's
testamentary instruments was intentional and that intention appears
from the testamentary instruments.
(b) The decedent had one or more children and devised or otherwise
directed the disposition of substantially all the estate to the other
parent of the omitted child.
(c) The decedent provided for the child by transfer outside of the
estate passing by the decedent's testamentary instruments and the
intention that the transfer be in lieu of a provision in said
instruments is show by statements of the decedent or from the amount
of the transfer or by other evidence.
?..
So, what does the Uniform Parentage Act (mentioned above) say about
this? Well, in the State of California the act defines ?a parent?
thusly:
?The Uniform Parentage Act, California Civil Code sections 7000-7021,
separates birth fathers into two legal categories: "alleged" fathers
and "presumed" fathers. The rights of the biological father depend
upon his position according to these legal definitions.
A man is a presumed father if he was married to the birth mother at
the time of birth or within 300 days before the baby's birth. Thus, a
recently-divorced or deceased husband is a presumed father.
A man is also a presumed father if he marries the birth mother after the birth.
He will be a presumed father if he either is named on the birth
certificate with his consent or is obligated to pay support under a
voluntary promise or court order.
A man can become a presumed father without marrying the birth mother
by receiving the child into his home and declaring that the child is
his biological child.
One of the unusual results of the Uniform Parentage Act is that a man
who is not the biological father of the child may be legally
designated the presumed father. This happens most frequently when a
woman becomes pregnant while separated from her husband but whose
marriage to him was not legally terminated within three hundred days
before the child's birth.
All other men who claim to be the child's father, or who are named by
the birth mother as the father or as a possible father, are alleged
fathers.?
ADOPTION LAWS ? CALIFORNIA
http://www.pactadopt.org/adoptive/laws-ca.html
California : Family Code: 7610-7614
http://www.divorcesource.com/CA/CODE/7610_7614.html
California : Family Code: 7540-7541
http://www.divorcesource.com/CA/CODE/7540_7541.html
California : Family Code: 7570-7577
http://www.divorcesource.com/CA/CODE/7570_7577.html
?..
Referring back to CALIFORNIA CODES SECTION 6453 then, we see that the
law states ?A natural parent and child relationship is established
where that relationship is presumed and not rebutted pursuant to the
Uniform Parentage Act, Part 3?, which of course, clearly appears to be
the case here.
The bottom line here appears to be that if ?the father? did (or failed
to do) the following, you are considered his legal descendant and
therefore his heir in the same manner as his biological children:
If he assumed or claimed that you were his biological child.
If he did not legally contest the fact that you were his biological child.
If he presumed or consented to being presumed that he was your father.
If he consented to having his name appear on your birth certificate as
being the father.
Or if he ever agreed to, or was ordered by a court to pay support.
I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
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Request for Answer Clarification by
danene-ga
on
18 Aug 2004 10:21 PDT
Thank you all! Your responses have definitely exceeded my
expectations! I did want to provide additional information. Because
this man was still married to my mother when I was born, the laws at
that time (I was born in Illinois-1959) required that I take his name
and he appears on my birth certificate as my father. However, I was
not raised by him, and did not know him until about 15+ years ago, and
only recently had frequent communications with him because he became
ill. This man was erroneously told that I was his daughter (by my
mother and brother---long story), and inspite of me telling him on
numerous occasions that I was not, he never believed me. I have no
intentions of making any claims, but at the same time, I wanted to be
prepared to "defend" any claims just in case I am named as an heir.
Thank you again.
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