The evolving notion of what constitutes “family” continues to pose interesting challenges in the realm of trusts and estates.

Questions arise as to whether blood-relation alone should be sufficient to establish an entitlement to inherit, or whether the decedent’s intent to disclaim a parental relationship should outweigh a minor child’s need for support.

“Openly Held Out” Standard Refined

These questions presented themselves in the recent California decision of Estate of Britel (2015) 236 Cal. App. 4th 127, 2015 WL 1851074. This case affects the factual showing a nonmarital child must make to establish entitlement to inherit from a parent’s estate.

In Britel, Jackie, the mother of a nonmarital child of the decedent sought to establish the child as an heir of her father’s intestate estate. Jackie relied on a provision of the California Probate Code that allows a paternity action to be brought posthumously when, among other things, the decedent “openly held out” the child as his own.

Although the decedent acknowledged the child was his and that DNA testing showed with a high level of certainty that the child was his, Jackie was ultimately unable to satisfy the “openly held out” standard. The court determined that the “openly held out” required more than a mere acknowledgement of paternity, but “an unconcealed affirmative representation of paternity in open view.” (Id. at p. *6.)

Accordingly, the decedent’s conduct in admitting paternity only to Jackie and his best friend, but concealing the fact that he had a child to his family and going so far as to telling his best friend that Jackie had an abortion, as well as expressly telling Jackie he wanted nothing to do with her or the child, weighed against a finding that the decedent had openly held out the child as his own. As a result, Jackie could not establish her child’s entitlement to inherit from the decedent’s estate.

Britel Extends Beyond Trusts and Estates

For obvious reasons, Britel’s significance extends beyond the arena of trusts and estates. From the nonmarital child’s perspective, Britel’s imposition of a more stringent factual showing of “openly held out” could pose significant challenges in establishing a parent-child relationship with an unwilling parent absent a paternity order issued during the decedent’s lifetime. (This was precisely the case for Jackie, as she never brought a paternity action while the decedent was alive, explaining that she wanted to refrain from doing so until the decedent was “ready” to be a father.)

Consequently, for the nonmarital child, or his or her mother, Britel demonstrates the importance of obtaining such a paternity order while the decedent is alive—not only for support while the child is a minor, but also to establish inheritance rights that extend beyond the age of minority.

Child Support Law Verses Inheritance Law: Best Practices for Avoiding the Situation in Britel

Indeed, the Britel case made clear that the purposes of child support law and inheritance law differ greatly: while child support law addresses the public policy concern of ensuring minors are adequately supported, the “laws of testate and intestate succession focus on [the decedent’s] intent (or his likely intent if he died intestate) in the distribution of his estate.” (Id. at p. *9.)

Accordingly, as a result of Britel, a nonmarital child (or his or her mother) may be well-advised to bring a paternity action as soon as possible to preserve the child’s rights to inherit (and, in some cases, to continue receiving child support after the decedent’s death).

However, bringing such an action will not necessarily result in an unqualified right to inherit. While the would-be decedent could be obligated to provide support for the child under such a intervivos paternity order, the would-be decedent could avoid having part of his estate distributed to the child by expressly disinheriting him or her in his estate plan.

Central to the issues in Britel was the fact that the decedent died intestate, providing the nonmarital child with an opportunity to claim entitlement to inherit through statutory intestate succession. If the decedent in Britel had an appropriate estate plan in place at the time of his death, it is possible the estate plan could have prevented Jackie from bringing suit in the first place.