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By aphrael (Wed Oct 03, 2007 at 07:46:47 AM EST) (all tags)
A bizarre corner case in California law, which I encountered in the practice midterm for my legal writing class.


  1. In general, a stepchild who was not adopted by his stepparent cannot inherit if that stepparent dies without a will.
  2. There are some exceptions. Those exceptions generally require that there be clear and compelling evidence that the stepparent intended to adopt the stepchild, but was unable to do so due to some legal obstacle (normally, the opposition of the parent whom the stepparent isn't married to).
  3. Children over the age of 12 cannot be adopted without their consent.
Which means: a stepchild who refused to be adopted can legally inherit from their dead stepparent, so long as there is clear and convincing evidence that the stepparent would have adopted the child if the child had allowed it.

Bizarre.

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bizarre law | 21 comments (21 topical, 0 hidden) | Trackback
troll. by aphrael (4.00 / 0) #2 Wed Oct 03, 2007 at 07:57:33 AM EST
not relevant: she gave birth to them, so they are her kids. the stepchildren rules don't apply. unless K-Fed's future wife decides not to adopt them (and then Britney's estate isn't relevant).
If television is a babysitter, the internet is a drunk librarian who won't shut up.
You get a zero... by toxicfur (2.00 / 0) #4 Wed Oct 03, 2007 at 08:02:56 AM EST
for typing the non-word "alot." That really bugs me.
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If you don't get a Bonnie, my universe will not make sense. --blixco
[ Parent ]
she keeps coming up in class. by aphrael (2.00 / 0) #6 Wed Oct 03, 2007 at 08:09:11 AM EST
no. by aphrael (2.00 / 0) #9 Wed Oct 03, 2007 at 08:23:05 AM EST
different profs keep bringing her up as an example to illustrate the principle of the day.
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
That is bizarre. by toxicfur (4.00 / 0) #5 Wed Oct 03, 2007 at 08:07:55 AM EST
I'm guessing with stepchildren in the mix, especially those who were partly reared by the step-parent, there would be much contesting of the property without a will. And then how does the court (or whoever) know that the stepparent would've adopted and that the kid said no? What would stop a stepchild from claiming that to be the case?
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If you don't get a Bonnie, my universe will not make sense. --blixco
yeah. by aphrael (4.00 / 0) #7 Wed Oct 03, 2007 at 08:10:36 AM EST
the exception for people who would have adopted but for a legal barrier exists, I think, to deal with the case where the ex won't allow it or, worse, can't be found.

the you can't adopt without consent law is there to keep children from being forced into relationships they don't want.

but the intersection of the two creates this really wierd side effect where you can inherit if you didn't let stepparent adopt you.

huh?
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
An obscure edge case by ucblockhead (4.00 / 1) #10 Wed Oct 03, 2007 at 08:58:14 AM EST
Given that in this state spouses automatically hold all property together, I doubt this ever comes into play. If a parent and stepparent die together, children would inherit everything as both parents hold all property together. This would only occur if the biological parent dies first, at which point it's likely that the stepparent would have to adopt to retain custody.

It really all makes a lot of sense to me. I haven't spoke to my biological father in over a decade. He is married to someone I barely know. If he died tomorrow and she died in a couple decades, why should I expect any part of her estate?

The bit about adoption isn't really that odd. It's really just being used as a proxy for the dead person's intent. If the stepparent made an attempt at adoption, then one would assume that that stepparent would want his/her estate to go to the kid. The child's intent doesn't really matter. You can inherit from people who you want nothing to do with.
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[ucblockhead is] useless and subhuman

not all property is held together by aphrael (4.00 / 0) #12 Wed Oct 03, 2007 at 09:13:53 AM EST
since property owned before the marriage isn't held in common.

the case where this originally came up involved two kids whose parents had divorced when they were like 2. their dad had remarried, and from their earliest memory, their stepmom treated them as her children.

in fact, until they were in their thirties, they didn't even know that stepmom wasn't mom. they were very close to stepmom, kept in touch, treated her as mom, etc, throughout their entire lives.

dad died. stepmom died.

they couldn't inherit.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
proxy by aphrael (4.00 / 0) #14 Wed Oct 03, 2007 at 09:16:03 AM EST
It's really just being used as a proxy for the dead person's intent.

Precisely. It can create a bizarre case in court, though, when the stepchild can effectively argue "i hated her guts but i should inherit her estate".

If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
What kid would argue that? by Horatio Hellpop (2.00 / 0) #19 Wed Oct 03, 2007 at 10:23:05 PM EST
It's Cali, and the Estate's there for the survivors, so of course Cali law will protect the interests of the kiddies. I'm certain the legislature had this effect in mind when they wrote the law. No surprise here.

"You can't really know something until you ruin it for everyone." -some guy who used to have an account here

[ Parent ]
huh? by aphrael (2.00 / 0) #22 Thu Oct 04, 2007 at 07:52:20 AM EST
The legislature had in mind the intent of the deceased, which is quite clear from the text of the law and the court cases interpreting it.

If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
Weird by duxup (4.00 / 0) #11 Wed Oct 03, 2007 at 08:59:07 AM EST
I would think a stepchild could do so just like another child although I'm also imaging a shiny happy people family where everyone is cool with that.  I suppose by the time folks are consulting the law books that isn't so much the case.
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one of the early test cases by aphrael (4.00 / 1) #13 Wed Oct 03, 2007 at 09:15:06 AM EST
involved people whose dad had remarried while they were adults. stepmom had no children. dad died, stepmom died, they tried to inherit. stepmom's nephew said "no fucking way, you were never her children", and won.
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
moral-- by garlic (2.00 / 0) #15 Wed Oct 03, 2007 at 10:31:01 AM EST
get your heirlooms before your relatives die. Then don't fight over dead peoples stuff.


[ Parent ]
Interesting by Troll Hard (2.00 / 0) #16 Wed Oct 03, 2007 at 12:52:16 PM EST
but what if the Will left by the stepparent says otherwise?

ahh. by aphrael (2.00 / 0) #17 Wed Oct 03, 2007 at 06:42:32 PM EST
the premise is that there was no will. if there is a will, then this statute and the judicial standards for interpreting it are irrelevant.
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
If there is no will by Troll Hard (2.00 / 0) #18 Wed Oct 03, 2007 at 07:43:35 PM EST
then it will be tied up in probate court for about a year or more anyway.

Even with a will I think it ends up in probate court anyway.

That is my my wife and I wrote a will, as do most people.

[ Parent ]
tied up in probate court by aphrael (2.00 / 0) #21 Thu Oct 04, 2007 at 06:11:19 AM EST
sure. i'm talking about the rules the probate court will apply. courts aren't black boxes.

i have a will. i'm constantly amazed at the people i know who don't.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Almost everyone I know has a will by Troll Hard (2.00 / 0) #23 Thu Oct 04, 2007 at 10:18:52 AM EST
because they don't want the government messing with what they leave behind to relatives.

[ Parent ]
that seems unfair. by aphrael (2.00 / 0) #24 Fri Oct 05, 2007 at 08:11:44 AM EST
if you die without a will, your stuff has to go to someone. most jurisdictions have complicated ruels which try to determine who you would have wanted it to go to.

i question their assumptions in some cases (in parts of the country, if one member of a gay couple dies intestate, the state assumes the deceased didn't intend their partner to inherit, for example), but no system is going to be perfect at understanding what was desired by a dead person who failed to express their wishes.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Did you know that sometimes by Troll Hard (2.00 / 0) #25 Fri Oct 05, 2007 at 09:31:28 AM EST
the government takes a huge amount of money from the estate if there is no will? Unfair, but some states and cities have that rule.

Yeah it is unfair to gay couples, because Probate court won't see the gay partner as a spouse and give the money to blood relatives instead.

Life is unfair, sometimes the law is unfair too, get used to it. I used to work for lawyers, so I know how unfair it can be.

[ Parent ]
bizarre law | 21 comments (21 topical, 0 hidden) | Trackback