New case: for the purpose of the related by blood or marriage exception to section 21350 disinheritance, an heir is anyone who could inherit by intestate succession even if they don’t so inherit under the circumstances of the case

New California estate and trust case: for the purpose of the related by blood or marriage exception to section 21350 disinheritance, an heir is anyone who could inherit by intestate succession even if they don’t so inherit under the circumstances of the case.

Hernandez v. Kieferle (California Court of Appeal, October 31, 2011, Case No. B229653).

Decedent left her estate by trust to a stepdaughter who was a care custodian for Decedent.  The stepdaughter was the daughter of Decedent’s pre-deceased husband.  In pertinent part Cal. Probate Code §21350 includes categories of people who cannot be recipients of testamentary bequests.  One of those categories includes persons who are care custodians of the Decedent.  However, §21351(a) states that §21350 does not apply when the Decedent transferor is “related by blood or marriage” to the transferee.  Section 21351(g) further states that the “related by blood or marriage” provision shall include persons within the fifth degree or heirs of the transferor.  The question was whether the stepdaughter was an heir of the Decedent.

It was clear that under the circumstances of the estate the stepdaughter would not inherit through intestacy as an heir of the Decedent.  However, if the assets of the estate had been different, it could have been possible that the stepdaughter could have inherited as an heir through intestacy.

More specifically, Probate Code §44 defines an heir to be  any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under the Probate Code, and under §6402.5, which falls within the provisions governing intestacy (§6400 et seq.), the children of a decedent’s predeceased spouse may in some circumstances take the decedent’s property.  Subdivision 6402.5(a) states in part that for purposes of distributing real property, if the decedent had a predeceased spouse who died not more than 15 years before the decedent and there is no surviving spouse or issue of the decedent, the portion of the decedent’s estate attributable to the decedent’s predeceased spouse passes as follows: (1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse.

In this case the stepdaughter was the daughter of Decedent’s pre-deceased husband who had died approximately 11 years earlier.  The Court held that the “related by blood or marriage” exception applies because by interpreting the term “heir” broadly, in this case the stepdaughter qualified as an “heir” under §6402.5 regardless of whether the stepdaughter would have inherited property if the Decedent had died intestate.

I’ll need to give this decision more thought as it might be a circumstance of bad law to reach a particular conclusion.

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