My daughter recently died, and had been widowed for 14 years. There are 3 grown stepchildren who are being told that according to probate code 6402.5, they are entitled to their stepmoms estate. Is this true? I am the Only remaining blood relative. So, who would be legally entitled to my daughters estate, me the mother or the children? What does 6402.5 probate code mean?

My daughter recently died. There are 3 surviving adult stepchildren. Their father died 14 years ago. They are claiming that according to probate code 6402.5, they would be entitled to their stepmothers estate. Can you explain that code? And is it true? I am the ONLY remaining blood relative, so Who is legally entitled to the estate. Can they legally go into my daughters home and remove things? Because they are. Can I press charges

What State? That section of State Law is meaningless without that info -

Who filed the probate papers? You SHOULD have as next of kin.

EDIT: All right, I checked - it's Calfornia. You are the next of kin and the first in line to inherit. I am posting the exact wording of the law. Again, I would file for probate and lock the house. At this point you can lock your daughter's house and keep her stepchildren out.

I am a stepmother. I would be horrified if I would die and my mother would take away from my stepchildren. Of course, I also have a Will and every situation is different.

But here is what that Section says:

"Except as provided in Section 6402.5, the part of the
Intestate estate not passing to the surviving spouse or surviving
Domestic partner, as defined in subdivision (b) of Section 37, under
Section 6401, or the entire intestate estate if there is no surviving
Spouse or domestic partner, passes as follows:
(a) To the issue of the decedent, the issue taking equally if they
Are all of the same degree of kinship to the decedent, but if of
Unequal degree those of more remote degree take in the manner
Provided in Section 240.
(b) If there is no surviving issue, to the decedent's parent or
parents equally. (c) If there is no surviving issue or parent, to the issue of the
Parents or either of them, the issue taking equally if they are all
Of the same degree of kinship to the decedent, but if of unequal
Degree those of more remote degree take in the manner provided in
Section 240.
(d) If there is no surviving issue, parent or issue of a parent,
But the decedent is survived by one or more grandparents or issue of
Grandparents, to the grandparent or grandparents equally, or to the
Issue of those grandparents if there is no surviving grandparent, the
Issue taking equally if they are all of the same degree of kinship
To the decedent, but if of unequal degree those of more remote degree
Take in the manner provided in Section 240.
(e) If there is no surviving issue, parent or issue of a parent,
Grandparent or issue of a grandparent, but the decedent is survived
By the issue of a predeceased spouse, to that issue, the issue taking
Equally if they are all of the same degree of kinship to the
Predeceased spouse, but if of unequal degree those of more remote
Degree take in the manner provided in Section 240.
(f) If there is no surviving issue, parent or issue of a parent,
Grandparent or issue of a grandparent, or issue of a predeceased
Spouse, but the decedent is survived by next of kin, to the next of
Kin in equal degree, but where there are two or more collateral
Kindred in equal degree who claim through different ancestors, those
Who claim through the nearest ancestor are preferred to those
Claiming through an ancestor more remote.
(g) If there is no surviving next of kin of the decedent and no
Surviving issue of a predeceased spouse of the decedent, but the
Decedent is survived by the parents of a predeceased spouse or the
Issue of those parents, to the parent or parents equally, or to the
Issue of those parents if both are deceased, the issue taking equally
If they are all of the same degree of kinship to the predeceased
Spouse, but if of unequal degree those of more remote degree take in
The manner provided in Section 240."

Please post each question once - we are all volunteers. Someone will answer you as quickly as they can.

How long did she know the stepchildren? Did she help raise them? If not then there is a question as to if they are entitled to anythig.

Ref:

Families in Transition: California Continues to Grapple with the Inheritance ... (http://library.findlaw.com/2001/Feb/1/127078.html)

As Judy pointed out, If your state is CA then code 6402.5 is clear that you are next in line.

My question is WHO is telling them that they are?

My question is this... you say they are step children, which I believe. Are you sure though that she didn't legally adopt them after she and their father married? If she did then they aren't actually step children they are legally her kids and would then be the first in line for the estate. I'm not saying that you are wrong but that could be the miscommunication here.

The were never adopted, we do know that for a fact. No, she didn't raise them
They got their information I assume from a website, as we are. They found this probate code 6402.5, read it, (without reading it in its entirelty obviously) and this is what they think.

Or they may know they are not getting it and just merely want to lie or try and trick you

Since the statute is very clear I think Chuck is very likely correct.

How long has she known the children for?

About 14 years

about 14 years

So your saying that she basically got married and he passed away in the first year of marriage? In your first post you mentioned that she has been widowed for 14 years. Were they not married before that for a longer period?

How old are the children?

They were married for 17 years, he's been gone for 14 years. The stepchildren came in the picture many years later, in her late 20's, so stepmom didn't raise her. Make sense.

There are 3 children

And while not often said on the legal forum, we are sorry for your loss, we often jump into the legal parts ( which is what the forum is for) but all of us are sorry for your loss of your daughter, the legal fighting just makes it worst

they were married for 17 years, hes been gone for 14 years. the stepchildren came in the picture many years later, in her late 20's, so stepmom didnt raise her. make sense.

At those ages and at those kind of years they may have a claim. Since it appears she has known them for over 1/2 of their lifetime. Best to check with a lawyer in your local area on exactly how that works. At this point they seem to be meeting the time test.

Thank you for your input, actually we were just advised, that according to probate code 6402, that is not correct. The blood relative is actually the one the estate would go to. Unfortunately, stepchildren don't apply in this particular situation.

Since it appears she has known them for over 1/2 of their lifetime.
I do not believe that if you have known a person for 1/2 of his/her lifetime it will result in mandatory equitable adoption and thus to give inheritance rights.

Since the statute is very clear I think Chuck is very likely correct.

Hmm, I wouldn't be so sure the statute is entirely clear. The case law is what counts and the facts here are blurry at best.

To the OP... get an attorney!

I did a 5 min search of cases in California and found one that supports the otherside if certain facts are met. I have by no means done an extensive search and this is just opinion on my part and an intellectual exercise as I am not an attorney in California and not getting paid (lol). It's an old case, but I didn't see anything specifically contradicting it, but again... get a lawyer and get his competent legal advice.

"Under sections 228 and 229 of the Probate Code, the issue or kindred of the predeceased spouse are statutory heirs of the surviving spouse, and their rights under those sections do not vest until the death of the latter. In re Estate of Watts, 179 Cal. 20, 23, 175 P. 415; In re Estate of Bixler, 194 Cal. 585, 595, 229 P. 704. The property acquired outside of this state during the marital relation is subjected to the laws of succession of California by the fact that, at the time of the death of the surviving spouse, he or she was domiciled within its borders; it may therefore be reclassified under the law of the domicile. In re Estate of Allshouse, 13 Cal.2d 691, 91 P.2d 887, this court held that, under section 229 of the Probate Code, the origin of an estate may be traced into a foreign jurisdiction and the California classification of property applied to the property there acquired. But the decision was qualified by the requirement that the nature of the foreign ownership must be substantially the same as that which the property would have if acquired in this state. Upon a reconsideration of the reasoning of that case, it seems obvious that the limitation of section 229 to property, which, in the foreign jurisdiction, had substantially identical incidents to the classifications of property in a community property state has no reasonable foundation and is not consistent with the legislative intent expressed in sections 228 and 229 of the Probate Code. As those statutes affect succession only, their purpose is fully carried out if the probate court distributes the property upon the basis of its classification had it been acquired in California. Applying that rule, it is unnecessary to determine whether the property owned by Wallace T. Perkins at the time of his death would have been community or his separate property if it had been acquired in California. The respondent, as his son, is entitled to all of the estate of Mrs. Perkins which came to her by gift, descent, devise or bequest from the property of her predeceased husband reclassified as either his separate property or that of the community."
In re Perkins' Estate, 21 Cal.2d 561, 570-571, (1943).

Hmm, I wouldn't be so sure the statute is entirely clear. The case law is what counts and the facts here are blurry at best.


Nope, the statute is clear, but as you point out other statutes and case law may muddy the waters. Also remember the step children specifically cited that one statute.

To the OP, I don't think an attorney is necessary quite yet. Show the steps the actual statute. And file for probate to be named sole heir and executor citing that statute. Change the locks and protect the property in the interim.

But, if the steps challenge and get an attorney you WILL need one yourself.

Nope, the statute is clear, but as you point out other statutes and case law may muddy the waters. Also remember the step children specifically cited that one statute.

To the OP, I don't think an attorney is necessary quite yet. Show the steps the actual statute. And file for probate to be named sole heir and executor citing that statute. Change the locks and protect the property in the interim.

But, if the steps challenge and get an attorney you WILL need one yourself.

I have to agree.
There are two Ca-/California and Canada/ which are very pu$$y places with totally inconsistent and irrational court decisions.

Hmm, I wouldn't be so sure the statute is entirely clear. The case law is what counts and the facts here are blurry at best.


Once again you have muddied the waters by quoting cases which are not on point - PLEASE ask the question and then post the cases/Law as you read them/it based on that information. All you are doing is confusing the situation.

The law is VERY CLEAR and I posted it. I don't understand why YOU, a law school student, don't understand the law - and/or have posted case law which is not pertinent.

The people posting questions here are unfamiliar with the Law and how it operates and your bringing up side issues only confuses them and does not answer the question.

This question is very simple and the law was posted.

I realize you are a student with (apparently) little experience in the Law but you ask and answer your own questions within a thread.

Both the law and court practice are clear:
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.

(b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier."

If she never tried to adopt them they have no legal grounds.

The people posting questions here are unfamiliar with the Law and how it operates and your bringing up side issues only confuses them and does not answer the question.


To adthern,
Please re read what I quoted from Judy. If you want to show off your research skills that's fine. But we are here to help the people asking questions. Most of the time these people are looking for a basic interpretation of the law so they can understand their rights. Much of the time we do advise them to seek legal counsel, but its not always necessary. Most of the time they can't afford legal counsel and much of the time its unnecessary.

Probate court is often more friendly to pro se applicants. I suspect the estate the OP is dealing with is not large. So her best course of action at THIS point in time, is what I recommended.

A lot of the problem comes in because the wording is split in so many ways through different sections. Here is a quote on:




6402.5.
(a) For purposes of distributing real property under this section 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; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in Section 240.


Ref:

California Intestacy Laws (http://www.mystatewill.com/statutes/ca_law.htm)



There it shows a 15 year rule applied.

I do not believe that if you have known a person for 1/2 of his/her lifetime it will result in mandatory equitable adoption and thus to give inheritance rights.

That is why I used the word may in my statement because there are so many qualifying rules that go with it. Made it a little hard to follow because of what the rules are and how they might have applied in this case.