Filed 5/15/15 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Estate of AMINE BRITEL, Deceased.

JACKIE S. et al.,

 Petitioners and Appellants,

v.

MOUNA BRITEL et al.,

 Objectors and Respondents.

 G049161

 (Super. Ct. No. 30-2011-00478927)

 ORDER MODIFYING OPINION 

 AND DENYING PETITION FOR 

 REHEARING; NO CHANGE IN 

 JUDGMENT

It is ordered that the opinion filed herein on April 23, 2015, be modified as 

follows:

On page 1, in the case title, the name “Jackie Stennett” is changed to 

“Jackie S.”

On page 2, in the first paragraph, second sentence change the name Jackie 

Stennett to “Jackie S.”

On page 5 , in the first full paragraph, line 5, delete the name “Stennett” 

and in its place insert “[S.]” 
2

At the end of the last paragraph on page 23, after the citation ending with 

“Apfel, supra, 177 F.3d at p. 894.)” add as footnote 12 the following footnote:

12

On petition for rehearing, Jackie notes, inter alia, that we did not discuss 

the case of Arizmendi v. System Leasing Corp. (1971) 15 Cal.App.3d 730. That is true, 

for at least one good reason. Arizmendi was not cited by any party to this appeal, nor by 

amici. Under a former version of the wrongful death statute, Arizmendi held that a 

nonmarital child has standing to sue for the wrongful death of a parent, despite not 

qualifying as an heir under former law, because to hold otherwise would deny the child 

equal protection of the law under the Fourteenth Amendment to the United States 

Constitution. (Id. at p. 737.) The Arizmendi court relied on the decision of the United 

States Supreme Court in Levy v. Louisiana (1968) 391 U.S. 68, which held that a 

Louisiana statute, as interpreted by its highest court, denied equal protection of the law to 

nonmarital children by denying them standing to bring an action for the wrongful death 

of their biological parent. In Lalli, supra, 439 U.S. at p. 268, footnote 6, the high court 

distinguished Levy, stating: “The presence in this case of the State’s interest in the 

orderly disposition of a decedent’s property at death distinguishes it from others in which 

that justification for an illegitimacy-based classification was absent,” citing, inter alia, the 

Levy decision. Thus, the question becomes whether the California statute governing 

standing to sue for wrongful death (Code Civ. Proc., § 377.60), interpreted by the courts 

as being governed by the intestacy laws, survives an equal protection challenge under the 

rationale of Levy and Arizmendi. (See, e.g., Cheyanna, supra, Cal.App.4th at p. 865 

[“standing to bring a wrongful death action remains linked to the intestacy laws”].) Lalli

suggests the equal protection analyses of the wrongful death statute and the intestacy 

statute differs because the state’s interest in maintaining disparate treatment of marital 

and nonmarital children differs under each statute.

In her petition for rehearing Jackie attempts to shoehorn the Arizmendi/Levy

equal protection analysis into this case by asserting “this is a wrongful death case.” But 

this is not a wrongful death case. This appeal was taken from competing petitions in the 

probate court for letters of administration and to determine heirship. Accordingly, our 

opinion deals only with the heirship question. Whether the wrongful death statute, as 

interpreted by the courts, survives an equal protection challenge by a nonmarital child has 

not been litigated in this case, either in the trial court or here, and we express no opinion 

on the issue. The equal protection issue under the wrongful death statute is more 

appropriately litigated in a suit for the wrongful death of Amine. 
3

The petition for rehearing is DENIED.

The modification does not change the judgment. 

___________________________

IKOLA, J.

WE CONCUR:

___________________________

ARONSON, ACTING P. J.

___________________________

FYBEL, J.
Filed 4/23/15 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Estate of AMINE BRITEL, Deceased.

JACKIE STENNETT et al.,

 Petitioners and Appellants,

v.

MOUNA BRITEL et al.,

 Objectors and Respondents.

 G049161

 (Super. Ct. No. 30-2011-00478927)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Randall J. 

Sherman, Judge. Affirmed.

Law Offices of Debra Graynom-Daly, Debra Graynom-Daly; Law Offices

of Diane Corwin, Diane Corwin; Ferguson Case Orr Paterson, Wendy C. Lascher, and 

John A. Hribar for Petitioners and Appellants.

Bidna & Keys, Howard M. Bidna, and Richard D. Keys for Objectors and 

Respondents.

Public Counsel and Lisa R. Jaskol for Women Lawyers Association of Los 

Angeles, The Harriet Buhai Center for Family Law, and Public Counsel as Amicus 

Curiae on behalf of Appellant.

* * *
2

Amine Britel died intestate in 2011. Appellant Jackie Stennett, the mother 

of A.S., a child born out of wedlock, petitioned to administer Amine’s estate and for A.S.

to be declared Amine’s heir under Probate Code section 6453, subdivision (b)(2) 

(section 6453(b)(2)).

1

Under section 6453(b)(2), a nonmarital child may establish that he 

or she is the natural child of an intestate decedent by proving the decedent “openly held 

out the child as his own.”

The court denied Jackie’s petitions. It granted the petition of respondent 

Mouna Britel (Amine’s adult sister) to administer Amine’s estate, which petition listed 

respondent Rhita Bhitel (Amine’s mother) as Amine’s surviving parent.

We affirm the court’s order. In doing so, we conclude section 6453(b)(2)’s 

phrase, “openly held out,” requires the alleged father to have made an unconcealed 

affirmative representation of his paternity in open view. We also conclude substantial 

evidence supports the court’s finding Amine did not openly hold out A.S as his child. 

Finally, we conclude section 6453(b)(2) does not violate the state or federal equal 

protection rights of nonmarital children or of nonmarital children who can prove paternity 

using DNA tests.

FACTS

Evidence prior to A.S.’s birth

In the fall of 1999, Amine and Jackie met at Harvard Business School and 

developed a romantic relationship. In the early summer of 2000, they graduated. Jackie 

went to work in Atlanta, Georgia, while Amine moved to Newport Beach, California.

 

1

All statutory references are to the Probate Code unless otherwise stated.

We sometimes refer to children born out of wedlock as nonmarital children.

For convenience and to avoid confusion, we sometimes refer to the parties 

and the decedent by their first names. We mean no disrespect.
3

In August 2000, Jackie phoned Amine and told him she was pregnant. The 

next day, Amine sent Jackie an e-mail message saying he was “devastated,” he would 

never be able to share the news with his parents, and that having a child out of wedlock 

was contrary to his Muslim religion and his culture and would bring him “a total shame 

[he would] have to bear for the rest of [his] life.” Amine continued: “Please understand 

that I do love you but I am just not ready to be a father right now. I want us to have a 

child through a legitimate marriage and not outside of wedlock. We need to live 

together, learn about each other, and then make a committment [sic] for life. I perceive 

marriage as a very serious engagement. I was devastated for the past two years as a result 

of a bad marriage. In all fairness, I believe I should be a part of this decision. [¶] It is 

important for us to meet to discuss this issue as soon as possible and find a suitable 

arrangement for both of us.”

Later that month or possibly in early September, Jackie visited Amine in 

California for three or four days. She had initially planned to stay around a week, but the 

trip was cut short and she returned to Atlanta. Within the next few days, Amine and 

Jackie spoke by phone between five to 10 times. The end result was that Amine told 

Jackie not to contact him again and that he did not want her or the baby to be in touch 

with him or his family.

Amine told his best friend, Youssef Choukri, that Jackie said she was 

pregnant with his baby, and that his having a child out of wedlock would bring shame to 

his family (who were highly regarded in Morocco) and might possibly cause Amine to be 

disinherited. Amine initially told Choukri he was not sure whether Jackie was really 

pregnant, but that he had told Jackie that if she was indeed pregnant, he would like her to 

have an abortion. 

In late 2000 or early 2001, Amine told Choukri that Jackie had had an 

abortion. Amine and Choukri never discussed the matter again.

At trial, Jackie testified she never told Amine she had had an abortion.
4

Evidence after A.S.’s birth

A.S. was born to Jackie in February 2001. Amine is not listed as the father 

on A.S.’s birth certificate. Prior to Amine’s death, Jackie never sought a paternity order 

to determine whether Amine was A.S.’s father. Amine never provided any financial 

support to A.S., never met her, and never communicated with her.

For many years, Jackie comported with Amine’s request that she not 

contact him. Then, in November 2006, Jackie sent Amine an e-mail message, which 

stated in part, “Per your last request I have kept my distance from you for the past six 

years.” Jackie’s e-mail message informed Amine that A.S. wanted a relationship with 

him.

Amine did not respond to Jackie’s e-mail message, so Jackie phoned him.

In the phone call, Jackie told Amine that A.S. asked about him and wanted him in her 

life. Amine was “terse and cold,” asked Jackie not to phone him again, and made it clear 

he wanted nothing to do with Jackie or A.S. This phone call and Jackie’s e-mail message

were the only communications between Jackie and Amine from the time A.S. was born 

until Amine’s death.

Amine was close with his family members, but never told them he had a 

child.

In February 2011, Amine was 41 years old, and a world class bicyclist. He 

was riding his bicycle in broad daylight, when he was struck and killed by a drunk, 

texting driver. At the time of his death, Amine was not married and had no domestic 

partner. He died intestate.

Jackie never sought a paternity order while Amine was alive because she 

wanted him “to participate when he was ready and by his own choice,” and she did not 

“want to force his hand.”

Over respondents’ objection, the court admitted into evidence a DNA test 

showing a 99.9996 percent probability that Amine was A.S.’s father.
5

The court’s ruling

The court found Jackie’s testimony was “not convincing”

2

and that Choukri 

was a credible witness. The court ruled: “The evidence submitted on the question of 

whether Amine Britel held out [A.S.] as his own child was disputed. After consideration 

and weighing of all testimony and evidence . . . , and the demeanor and credibility of the 

witnesses, the Court finds that Jackie Stennett did not carry her burden of establishing by 

clear and convincing evidence that Amine Britel openly held out [A.S.] as his own child 

in accordance with [section] 6453(b)(2). The evidence presented to suggest that Amine 

Britel held out [A.S.] as his own child is thin, at best . . . .”

In reaching its ruling, the court struggled with the statement in Estate of 

Burden that section 6453(b)(2)’s phrase, “‘openly held out,’ is synonymous with 

‘acknowledge’” (Estate of Burden (2007) 146 Cal.App.4th 1021, 1028 (Burden)) and that 

“acknowledge” means to “‘“concede to be real or true . . . [or] admit”’” (id. at p. 1029). 

The court stated: “[I]f it wasn’t for the Burden case, the court would be looking at the 

words of the statute itself, whether Amine Britel openly held out [A.S.] as his own. [¶] 

And the answer to that would be a clear no . . . .” Ultimately, the court concluded Amine 

had not openly held out A.S. as his own child.

The court denied Jackie’s petitions for determination of heirship and for 

letters of administration, and granted Mouna’s petition for letters of administration. By 

doing so, the court ruled that Amine’s mother Rhita is his sole heir.

 

2

The court further found the testimony of Henry Young, a witness called by 

Jackie, was not credible.
6

DISCUSSION

I. AMINE DID NOT OPENLY HOLD OUT A.S. AS HIS CHILD

Relying on Burden, supra, 146 Cal.App.4th 1021, Jackie contends Amine 

openly held out A.S. as his daughter within the meaning of section 6453(b)(2) and 

therefore the court erred by denying her petition for A.S. to be determined Amine’s 

natural child and sole heir. 

“Intestate succession is governed entirely by statute.” (3 Blaylock et al.,

Cal. Probate Practice (2015) § 23.06[1][a], p. 23-77; § 6400.) “The heirs of a person are 

those whom the law appoints to succeed at the decedent’s death to his or her estate in 

case of intestacy, by virtue of the statutes of succession.” (14 Witkin, Summary of Cal. 

Law (10th ed. 2005) Wills and Probate, § 74, p. 137.)

Section 6400 et seq. governs intestate succession. As relevant here, if there 

is no surviving spouse or domestic partner of an intestate decedent, the intestate estate 

passes to the decedent’s “issue” (§ 6402, subd. (a)), or if there is no surviving issue, to 

the decedent’s “parent or parents” (id., subd. (b)). “‘Issue’ of a person means all his or 

her lineal descendants of all generations, with the relationship of parent and child at each 

generation being determined by the definitions of child and parent.” (§ 50.)

3

 

3

Jackie argues DNA evidence establishes as a matter of law that A.S. is 

entitled to inherit from Amine. Relying on section 50’s definition of “issue” as the 

“lineal descendants of all generations,” she argues that “biological proof of 

paternity . . . definitively establishes that a child is the father’s lineal descendant.”

Without further analysis, she concludes that — because a decedent’s “issue” is entitled to 

inherit when there is no surviving spouse under section 6402, subdivision (a) —

consequently A.S. is entitled to inherit.

We reject her contention. The argument leaves out part of section 50’s 

definition of “[i]ssue.” Under that definition, a biological “lineal descendant[]” must also 

be in the “relationship of parent and child” with the decedent. Section 50 further 

specifies that the relationship of parent and child must be “determined by the definitions 

of child and parent.” The definitions of child and parent in sections 26 and 54, 

respectively, refer to entitlements to intestate succession established under the Probate 
7

Section 6450 et seq. (chapter 2 of part 2 of division 6 of the Probate Code

(chapter 2)) governs the relationship of parent and child. Under section 6450, “for the 

purpose of determining intestate succession,” the “relationship of parent and child exists 

between a person and the person’s natural parents, regardless of the marital status of the 

natural parents” (id., subd. (a)), and “between an adopted person and the person’s 

adopting . . . parents” (id., subd. (b)).

Jackie contends biological parents are, by definition, natural parents within 

the meaning of section 6450, subdivision (a). Not so. Section 6450 is expressly 

“[s]ubject to the provisions of” chapter 2. Section 6453, also contained in chapter 2, 

governs “whether a person is a ‘natural parent’ as that term is used in this chapter.”

4

At issue here is subdivision (b)(2) of section 6453. Under section 

6453(b)(2), a natural parent and child relationship may be established when “[p]aternity 

is established by clear and convincing evidence that the father has openly held out the 

child as his own.”

5

 

Code (of which, § 6453 governs who is a natural parent).

4

Section 6453 provides “the exclusive means for determining paternity” in 

intestacy proceedings, other than fatherhood by adoption. (Estate of Chambers (2009) 

175 Cal.App.4th 891, 896 (Chambers); 14 Witkin, Summary of Cal. Law (10th ed. 2005) 

Wills and Probate, § 94, p. 159 [§ 6453 is “[e]xclusive basis for paternity in intestacy 

proceedings,” italics omitted]; Estate of Sanders (1992) 2 Cal.App.4th 462, 469-471 

[predecessor statute to § 6453 governed paternity determination for purposes of intestate 

succession]; Burden, supra, 146 Cal.App.4th at pp. 1030-1031 [same, concerning 

§ 6453].) DNA evidence is irrelevant to the inquiry under section 6453(b)(2). (Estate of

Sanders, at pp. 477-478.)

5

The full text of section 6453 states: “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 [Fam. Code, § 7600 et seq.]. [¶] (b) A 

natural parent and child relationship may be established pursuant to any other provisions 

of the Uniform Parentage Act, except that the relationship may not be established by an 

action under subdivision (c) of Section 7630 of the Family Code unless any of the 
8

Thus, we must determine whether Jackie established by clear and 

convincing evidence under section 6453(b)(2) that Amine openly held out A.S. as his 

own child. To resolve this issue, we independently construe section 6453(b)(2)’s phrase,

“openly held out the child as his own.” (Estate of Joseph (1998) 17 Cal.4th 203, 216-

217; Burden, supra, 146 Cal.App.4th at pp. 1025-1026.) We then review for substantial 

evidence the court’s finding Jackie failed to prove by clear and convincing evidence that 

Amine openly held out A.S. as his own child. (Estate of Joseph, at p. 217; see Burden, at 

p. 1026.)

 

following conditions exist: [¶] (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. [¶] (c) A natural parent and child relationship may be established 

pursuant to Section 249.5 [child posthumously conceived using decedent’s genetic 

material].”

Family Code section 7630, subdivision (c) (concerning standing to bring an 

action to establish a parent-child relationship) deals “essentially with orphans or children 

whose fathers are not wed to their mothers and who do not receive them into their home.” 

(Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1207; see 14 Witkin, Summary of 

Cal. Law, supra, Wills and Probate, § 94, p. 158 [Fam. Code, § 7630, subd. (c) applies 

when there is “no presumed father or presumed father [is] deceased”].)

Neither party contends section 6453, subdivision (a) applies here. Indeed, 

Chambers held section 6453, subdivision (a) is inapplicable under these circumstances: 

“[W]hen a child born out of wedlock wants to show he is the natural child of a man who 

died without leaving a will, if the child relies on proof that the alleged father openly held 

him out as his own child, he must do so by clear and convincing evidence” under section 

6453(b)(2) (Chambers, supra, 175 Cal.App.4th at p. 896), not by attempting to rely “on 

Family Code section 7611[, subdivision (d)] by way of . . . section 6453, subdivision (a)” 

(id. at p. 895).

We have not found, nor have the parties directed us to, any published cases 

interpreting section 6453, subdivision (b)(3) other than Cheyanna M. v. A.C. Nielsen Co.

(1998) 66 Cal.App.4th 855, 877 (Cheyanna), which stated: “[T]he legislative history 

indicates that the ‘impossibility’ provision was enacted to cover the situation . . . where 

the father dies before the child is born.”
9

A. Section 6453(b)(2)’s phrase, “openly held out,” requires an unconcealed affirmative 

representation of paternity in open view

Jackie contends no public statement or public display is required to satisfy 

section 6453(b)(2)’s “openly held out” standard. In her view, the lone requirement is 

“that the father acknowledge the fact of fatherhood to someone at some time regardless of 

whether the father remains silent as to that status with respect to others including family 

members.” She contends Amine satisfied this requirement by, at some point during 

Jackie’s pregnancy, (1) expressing an acceptance of paternity (even a grudging one) to 

Jackie or Choukri, or (2) failing to deny to Jackie or Choukri that he was the father.

Jackie relies on Burden’s statement that section 6453(b)(2)’s phrase 

“openly held out’ is synonymous with ‘acknowledge[d]’” (Burden, supra, 146 

Cal.App.4th at p. 1028), and that “‘acknowledge’” means to “‘show by word or act that 

one has knowledge of and agrees to (a fact or truth)” or admits or concedes it to be true 

(id. at p. 1029). Thus, Jackie contends Amine openly held out A.S. to be his child when 

he privately conceded during the pregnancy that he fathered her unborn child.

Respondents counter that a private acknowledgement of paternity does not 

satisfy the “openly held out” standard.

Under the rules of statutory construction, a “‘statute’s plain meaning 

controls . . . unless its words are ambiguous.’” (Imperial Merchant Services, Inc. v. Hunt 

(2009) 47 Cal.4th 381, 387-388.) We give the statute’s words “‘their usual and ordinary 

meaning.’” (Id. at p. 387.) If possible, we give significance to every word. (Burden, 

supra, 146 Cal.App.4th at p. 1027.) Only if the statutory language is ambiguous may we

“‘consider other aids, such as the statute’s purpose, legislative history, and public 

policy.’” (Imperial, at p. 388.)

Accordingly, we consider the usual and ordinary meaning of each term in 

section 6453(b)(2)’s phrase “openly held out.” The adverb, “openly,” has several 

dictionary definitions that might apply here: (1) “freely and without concealment”
10

(Webster’s 3d New Internat. Dict. (2002) p. 1580, col. 2); (2) “without concealment, 

deception, or prevarication, esp. where these might be expected” (New Oxford American 

Dict. (3d. ed. 2010) p. 1228, col. 3); and (3) “frankly or honestly” (ibid). Another 

dictionary, while not containing a separate definition for the adverb “openly,” defines the 

adjective “open” (in this context) as “completely free from concealment” and “exposed to 

general view or knowledge.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 

811, col. 2.)

Two of the three dictionaries mentioned above contain a definition (in this 

context) of the verb “hold out:” (1) “to make out to be: REPRESENT” (Webster’s 3d

New Internat. Dict., supra, p. 1079, col. 2); and (2) “to present as something realizable: 

PROFFER”; or “to represent to be” (Merriam-Webster’s Collegiate Dict., supra, p. 552, 

col. 1).

Consistent throughout these dictionary definitions is the notion of an

affirmative representation being made in an unconcealed manner, not a mere 

acknowledgment of paternity nor an admission of parentage inferred from a failure to 

deny. But the ambiguity debated by the parties remains. An unconcealed affirmative 

representation could include a representation made “frankly or honestly” to a single 

person, even if done secretly and in private, if we adopt the New Oxford American 

Dictionary’s alternative definition of “openly.” On the other hand, an unconcealed 

affirmative representation could be construed to require a public representation, i.e., one 

that is “done . . . in open view” (New Oxford American Dict., supra, p. 1411, col. 1), or 

“exposed to general view” (Merriam-Webster’s Collegiate Dict., supra, p. 941, col. 2).

Under the rules of statutory construction, we may resolve this ambiguity by 

interpreting section 6453(b)(2) to effectuate the statute’s purpose. (Burden, supra, 146 

Cal.App.4th at p. 1027.) The purposes of the intestacy succession statutes are (1) to carry 

out the decedent’s “likely intent at the time of death” as to the distribution of his or her 

estate, and (2) to do so in an efficient and expeditious manner. (Estate of Joseph, supra, 
11

17 Cal.4th at p. 212; Burden, at p. 1027.) For the reasons discussed below, these 

purposes are best served by construing “openly held out” to require an unconcealed 

affirmative representation of paternity in open view.

Such a construction serves a “principal goal[] of intestacy law.”

(Pendleton, Intestate Inheritance Claims: Determining A Child’s Right to Inherit When 

Biological and Presumptive Paternity Overlap (2008) 29 Cardozo L.Rev. 2823, 2826.) 

Intestacy law strives to effectuate the decedent’s likely intent in the distribution of his 

property. A man who represents his paternity in open view is more likely to intend for 

his estate to pass to the child. “[I]t makes sense that a decedent would intend his estate to 

pass to a child he actively raised and nurtured within his family. On the other hand, it is 

less logical to presume that a decedent would intend to pass his estate to a child he may 

not even have known, simply on account of a biological connection or legal 

presumption.” (Id. at pp. 2826-2827, fns. omitted.)

Our construction of “openly held out” also serves the second goal of 

intestacy law, i.e., to efficiently and expeditiously carry out the decedent’s probable 

intent. When an affirmative representation of paternity is made in open view, clear and 

convincing evidence of it is more likely to exist. This “‘injects a strong dose of certainty 

into’ such matters” and “eliminates, or at least reduces, marginal claims.” (Estate of 

Joseph, supra, 17 Cal.4th at p. 213.) Conversely, if a secret acknowledgment were 

sufficient — such that the decedent’s family members, friends, or estate administrator 

were unaware of the putative child’s existence — no timely notice of the probate 

proceedings would be given to the potential heir. (Lalli v. Lalli (1978) 439 U.S. 259, 270

(Lalli).) This could cause disruptions in the probate proceedings, such as delaying 

inheritance and finality in estate administration. (Ibid.)

We conclude section 6453(b)(2) requires an affirmative representation of 

paternity that is unconcealed and made in open view. But although the representation 

must be a public one, in the sense of being made in open view, the statute does not 
12

require an announcement to the world, an official action, or an affectionate fatherly 

intent.

Each case depends upon its own circumstances as to whether an affirmative 

representation was unconcealed and made in open view. (See Estate of Baird (1924) 193 

Cal. 225, 277 (Baird).) Baird, although it interpreted an adoption statute,

6

provides some

potentially useful general guidelines: “While it is not required in order to constitute 

public acknowledgment that the father declare his paternity under all circumstances, it 

would be opposed to the idea of public acknowledgment if he deliberately refrained from 

declaring his paternity when the occasion would naturally demand it; or misrepresented 

the fact, or remained silent when he would reasonably be expected to announce he was 

the father of the child, as, for instance, in the case of immediate relatives.” (Id. at p. 276.) 

Nor does a person publicly acknowledge a child by revealing the child’s existence to 

persons who are not “likely to make public what [the decedent] had said to them on such 

a subject, but rather to accept it as a matter of confidence, to be kept secret.’” (Id. at 

p. 275.)

1. To the Extent Burden Holds that a Private Acknowledgment of Paternity is 

Synonymous with Openly Holding Out the Child As One’s Own, We Disagree

Burden (the case on which Jackie relies) states that section 6453(b)(2)’s 

phrase “‘openly held out’ is synonymous with ‘acknowledge[d],’” i.e., admitted or 

conceded. (Burden, supra, 146 Cal.App.4th at p. 1028, id. at p.1029.) If the Burden

court intended by this statement to hold that a private admission of paternity without 

more is sufficient to satisfy the “‘openly held out’” requirement, we respectfully disagree. 

Arguably, the statement is dictum, and the Burden court did not mean to hold that a 

private acknowledgment is sufficient, since the court recognized the decedent there “did 

 

6

The issue in Baird was whether the decedent had adopted a nonmarital 

child “by publicly acknowledging it as his own” within the meaning of former Civil Code 

section 230. (Baird, supra, 193 Cal. at p. 230.) 
13

more than privately acknowledge” the nonmarital son. (Id. at p. 1029.) Indeed, the father

in Burden affirmed his paternity in open view “on a number of occasions to a number of 

people, both orally and in writing” (id. at p. 1030), including his sister and the nonmarital 

son (id. at p. 1024). As a result, the father-son relationship was well-known: 

“[E]veryone in the family knew [that the nonmarital son] was [the alleged father’s] son”

(id. at p. 1025), and the son had a close relationship with the alleged father’s mother and 

siblings (id. at pp. 1024-1025).

Although we are uncertain whether the Burden court’s statement was 

intended to equate a private admission of paternity with the “openly held out”

requirement of section 6453(b)(2), Jackie has certainly interpreted it that way. 

Accordingly, to the extent the Burden court held that a private admission of paternity is 

sufficient to satisfy the “openly held out” standard, we now explain the reasons for our 

disagreement. In doing so, we assume for purposes of our discussion that the Burden

court did hold that a private admission of paternity was sufficient.

Because Burden was a “case of first impression” in construing the “openly 

held out” standard of section 6453(b)(2) (Burden, supra, 146 Cal.App.4th at p. 1023), the 

appellate court looked for guidance to cases interpreting other statutes. The court turned 

first to Family Code section 7611, subdivision (d) (Family Code section 7611(d)), which 

establishes a rebuttable presumption of parentage under the Uniform Parentage Act for a 

person who receives a child into his or her home and openly holds out the child as his or 

her natural child. Unfortunately, in our view, the Burden court erroneously concluded 

that “[n]umerous appellate opinions . . . have interpreted Family Code section [7611(d)’s]

use of the term ‘acknowledge’ as a synonym for ‘openly holds out.’” (Burden, at p. 

1028.) We find two flaws with this analysis.
14

First, Family Code section 7611(d) does not use the term “acknowledge.” 

Instead, it uses the phrase “openly holds out.”

7

Second, three of the six cases cited by Burden specify that Family Code 

section 7611(d) requires a public acknowledgment. (In re Salvador M. (2003) 111 

Cal.App.4th 1353, 1357 [“openly and publicly acknowledged paternity”]; In re Julia U.

(1998) 64 Cal.App.4th 532, 541 [“public acknowledgment of paternity”]; In re Spencer 

W. (1996) 48 Cal.App.4th 1647, 1652 [“openly and publicly admit paternity”]; see also 

Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 857 [“publicly acknowledging 

paternity and receiving the child into his home”].) In a fourth case, the father was present 

at the child’s birth, was listed on the birth certificate, and was represented by the mother 

“to the world” as the father. (Brian C. v. Ginger K., supra, 77 Cal.App.4th at p. 1221.) 

Brian C. concluded the Family Code section 7611(d) presumption of paternity was “the 

product of one year’s living with the child followed up with visitation after the 

relationship with the mother ended.” (Ibid.) Brian C. did not address whether a private 

admission of paternity satisfied the “openly held out” standard. (Ibid.) A fifth case 

briefly mentions “receiving and acknowledging” as a shorthand description of Family 

Code section 7611(d)’s language in a footnote. (Dawn D. v. Superior Court (1998) 17 

Cal.4th 932, 938, fn. 5.) Dawn D. does not address whether a private admission of 

paternity satisfies the “openly held out” standard. The last case uses the word

“acknowledged” as a synonym for “openly held out” in holding that Family Code section 

7611(d) did “not have any reasonable application to surrogacy cases.” (In re Marriage of 

Moschetta (1994) 25 Cal.App.4th 1218, 1226.) Moschetta does not address whether a 

private admission of paternity is sufficient.

 

7

Under Family Code section 7611(d), a person is a presumed parent if “[t]he 

presumed parent receives the child into his or her home and openly holds out the child as 

his or her natural child.” Since its inception in 1992, the statute has never contained the 

word “acknowledge.” (Stats. 1992, ch. 162, § 10, as amended by Stats. 1993, ch. 219, 

§ 176; Stats. 1994, ch. 1269, § 53; Stats. 2004, ch. 775, § 1; Stats. 2013, ch. 510, § 3.)
15

Burden also based its statutory construction on section 6452, which governs 

the less common situation where a parent seeks to inherit from a predeceased child. 

Under section 6452, as then in effect, a natural parent could not inherit from a nonmarital 

child unless the parent had “acknowledged the child” and contributed to the child’s 

support or care. (Burden, supra, 146 Cal.App.4th at p. 1028.) But section 6452 

demonstrates the Legislature uses the word “acknowledge” with no adverbs when 

appropriate.

Finally, Burden noted that, prior to 1993, the predecessor to section 

6453(b)(2) required the father to “‘openly and notoriously [hold] out the child as his 

own.’” (Burden, supra, 146 Cal.App.4th at p. 1028.) But by deleting “notoriously,” the 

Legislature simply discarded an outdated, pejorative adverb for having a child out of 

wedlock. (See, e.g., Webster’s 3d New Internat. Dict., supra, p. 1545, col. 2 [defining 

“notorious,” inter alia, as “widely and unfavorably known or discussed for something 

reprehensible or scandalous or for some negative quality or trait”].) 

2. In the Absence of a Court Decree or Enforceable Contract, a Decedent’s Estate is Not 

Generally Liable for the Support of a Minor

In her opening brief on appeal, Jackie briefly suggests that the law

governing child support should apply to a nonmarital child’s inheritance. She urged the 

same contention even more forcefully at oral argument. She suggests: “A man who 

impregnates a woman cannot evade his obligation to support his child simply because he 

is ‘not ready to be a father’ or he believes that having a child would embarrass his family. 

The same rule should prevail with respect to intestacy.”

But the law of intestacy is distinct from child support law, as revealed by an 

examination of the relevant history and purposes of intestate succession law. “At 

common law the court had no power to direct the payment of money out of the estate of a 

deceased person for the support and education of his family, to the exclusion of his 
16

creditors or heirs at law. Such power to do so as the court now has comes entirely from 

statute.” (In re Estate of McSwain (1917) 176 Cal. 280, 283; see Jacobs v. Gerecht

(1970) 6 Cal.App.3d 808 [affirming trial court’s sustaining of demurrer to complaint 

alleging common law claim for child support against decedent father’s estate].) The only 

statutory provisions for support of a minor child by a decedent’s estate are found in: (1)

section 6540, subdivision (a)(2), providing for a family allowance during administration 

of the probate estate; and (2) Family Code section 3952, providing that where “a parent 

chargeable with the support of a child dies leaving the child chargeable to the county,”

the county “may claim provision for the child’s support from the parent’s estate.”

In contrast, it has long been the rule that “the obligation of a father to 

support his minor child which is fixed by divorce decree or property settlement

agreement, does not cease upon the father’s death, but survives as a charge against his 

estate.” (Taylor v. George (1949) 34 Cal.2d 552, 556.) In other words, claims for child 

support based upon divorce decrees or property settlement agreements may be enforced 

against the estate as ordinary creditor claims under section 9000 et seq.

Just as divorce decrees and settlement agreements can create child support 

obligations, paternity suits brought during a father’s lifetime under Family Code 

section 7630 enforce his duty to support his children. “Establishing paternity is the first 

step toward a child support award, which, in turn, provides children with equal rights and 

access to benefits, including, but not limited to, social security, health insurance, 

survivors’ benefits, military benefits, and inheritance rights.” (Fam. Code, § 7570, subd. 

(a).) Furthermore, in paternity actions, Family Code section 7555 establishes a rebuttable 

presumption of paternity based on DNA tests.

Consequently, during a man’s lifetime, he can be mandated by court order 

or by contractual agreement to provide for his child’s support, regardless of the father’s 

personal preferences. And, if the father dies during the child’s minority, his support 
17

obligation continues as a claim against his estate. (Taylor v. George, supra, 34 Cal.2d at 

p. 556.)

But once a man dies, the laws of testate and intestate succession focus on

his intent (or his likely intent if he died intestate) in the distribution of his estate. The 

emphasis at that stage is on the decedent’s property rights. The “goal of carrying out the 

presumed intent of most decedents follows from the concept of private property, a 

concept at the heart of American property law. Connected to the idea that individuals can 

own and control property, separate and apart from ownership by the family unit or other 

social unit, is the idea that an individual property owner should be able to control the 

disposition of the property at his or her death.” (Gary, Adapting Intestacy Laws to 

Changing Families (2000) 18 Law & Ineq. 1, 8 (Gary).)

We recognize this emphasis on property rights represents a policy choice, 

but the choice is within the Legislature’s purview and is consistent with long-standing 

tradition. “Intestacy statutes have, since the first adoption of such statutes in this country, 

given a decedent’s property to those family members closest to the decedent.” (Gary,

supra, 18 law & Ineq. at p. 2.)

8

 Persons can “opt out of the intestacy statute either by 

executing a will or by holding title to property in a manner that provides for the transfer 

of title at death by means other than the probate system.” (Id. at p. 2, fn. omitted.) 

“Since each person is constitutionally free to dispose of his property in an unfettered 

 

8

The article concludes: “The form of American families has changed and 

will continue to change. . . . Families create caring, nurturing and loving relationships 

that do not depend on formal requirements that the family members be related by blood, 

legal marriage or adoption to be considered family.” (Gary, supra, 18 Law & Ineq. at p. 

80.) “Intestacy laws should encompass the children of the new families such as 

stepchildren, children of gay and lesbian families, and children in families headed by 

opposite-sex, unmarried partners. [¶] This Article proposes statutory changes that . . . 

could begin to make intestacy statutes more inclusive and more useful. Intestacy laws 

should approximate the intent of the decedent and provide support, both economic and 

psychological, for all families.” (Ibid.)
18

manner, it cannot be said that statutes reflecting the probable intent of individuals are 

unreasonable.” (Estate of Ginochio (1974) 43 Cal.App.3d 412, 419.)

As respondents point out, the “issue here is not whether Amine had an 

obligation under the Family Code to support [A.S.] while he was alive.” Jackie chose to

wait for Amine to become ready to be A.S.’s father. She never brought a paternity 

action. Her decision carried the risk that Amine could die intestate while she waited for 

him to grow into fatherhood. Conversely, had she brought a paternity suit, Amine might 

have chosen to write a will excluding A.S.

B. Substantial evidence supports the court’s finding Jackie failed to show Amine openly 

held out A.S. as his child

Jackie argues undisputed evidence showed “Amine acknowledged paternity

in his email to Jackie and his statements to his best friend.” As a threshold matter, 

respondents contend Amine’s actions prior to A.S.’s birth are irrelevant to this issue

under Cheyanna, supra, 66 Cal.App.4th 855. Cheyanna held the term “child,” as used in 

section 6453(b)(2), does not include an unborn child, and therefore it is impossible for a 

man to hold out a fetus as his child. (Id. at p. 874.) Jackie counters that Cheyanna’s 

holding does not apply here. We need not resolve this issue because substantial evidence 

supports the court’s finding, even taking into account the prebirth evidence.

Substantial evidence shows Amine never made an unconcealed affirmative 

representation of his paternity in open view. Prior to A.S.’s birth, Amine made it clear, in 

a private e-mail message to Jackie, that he could never tell his parents about the 

pregnancy; in other words, that he would conceal it from them. The court found Amine 

“maintained a close, open and loving relationship with his family.” Yet, he never told 

them about the pregnancy or, later, the child. He told his best friend Choukri that Jackie 

had had an abortion, and never mentioned the matter again to Choukri. There is no 

evidence that after A.S.’s birth, Amine acknowledged paternity in any way. Indeed, in
19

late 2006, less than four and one-half years before his death, Amine told Jackie not to 

contact him again and that he wanted nothing to do with her or A.S. In sum, substantial 

evidence supports the court’s finding Amine did not openly hold out A.S. as his child.

II. SECTION 6453 DOES NOT VIOLATE THE STATE OR FEDERAL EQUAL PROTECTION CLAUSES

Jackie contends that even if the court correctly interpreted and applied

section 6453, the statutory scheme violates the equal protection rights of nonmarital 

children because marital children enjoy a rebuttable presumption of a natural parent-child 

relationship under section 6453, subdivision (a). Amici argue the statutory scheme 

violates the equal protection rights of nonmarital children who can prove paternity using 

DNA tests.

Whether a statutory classification is unconstitutional “depends upon the 

character of the discrimination and its relation to legitimate legislative aims.” (Mathews 

v. Lucas (1976) 427 U.S. 495, 503-504.) The United States Supreme Court has generally 

applied an intermediate level of scrutiny to discriminatory classifications based on 

illegitimacy. (Clark v. Jeter (1988) 486 U.S. 456, 461 (Clark); Astrue v. Capato (2012) 

___ U.S. ___, ___ [132 S. Ct. 2021, 2033].) “To withstand intermediate scrutiny, a 

statutory classification must be substantially related to an important governmental 

objective.” (Clark, at p. 461, italics added.) The Supreme Court has explained why strict 

scrutiny does not apply: “[P]erhaps in part because the roots of the discrimination rest in 

the conduct of the parents rather than the child, and perhaps in part because illegitimacy 

does not carry an obvious badge, as race or sex do, [the] discrimination against 

illegitimates has never approached the severity or pervasiveness of the historic legal and 

political discrimination against women and [African-Americans].” (Mathews, at p. 506.) 

Although “illegitimacy is analogous in many respects to the personal characteristics that 

have been held to be suspect when used as the basis of statutory differentiations,” the 
20

Supreme Court has “concluded that the analogy [is] not sufficient to require ‘our most 

exacting scrutiny.’” (Trimble v. Gordon (1977) 430 U.S. 762, 767 (Trimble).)

9

Jackie contends the modern day accuracy of DNA tests compels the 

conclusion that section 6453 violates the equal protection rights of nonmarital children. 

She argues DNA proof of paternity eliminates the risk of fraudulent claims and therefore 

section 6453 no longer serves that state interest. Even if that were true, however, section 

6453 effectuates the state’s important interests in carrying out an intestate decedent’s 

likely intent and in doing so efficiently.

Jackie relies on Clark, supra, 486 U.S. 461 and Mills v. Habluetzel (1982) 

456 U.S. 91, both of which involved statutes of limitation for paternity actions, not 

intestate succession statutes. The state interests implicated in Clark and Mills differ from 

the legislative purposes underlying intestacy succession laws. Paternity actions enforce

“the State[‘s] interest in ensuring that genuine claims for child support are satisfied”

(Clark, at p. 462) and that a child may have a relationship with his or her father (County 

of Shasta v. Caruthers (1995) 31 Cal.App.4th 1838, 1841). California’s intestate 

succession laws, in contrast, further the state’s interest in carrying out the likely intent of 

 

9

Amici argue the differential treatment of non-marital children who can 

prove paternity using DNA tests is subject to strict scrutiny analysis under the California 

Constitution. Amici rely on Darces v. Woods (1984) 35 Cal.3d 871, 892, which stated 

the California “equal protection clause is ‘possessed of an independent vitality’ from the 

Fourteenth Amendment.” The challenged class in Darces was “citizen children eligible 

for governmental assistance” (id. at p. 874) who were denied a portion of their grant 

because they resided with siblings who were undocumented aliens (id. at p. 875). Darces

held the classification was suspect at least in part because it “touche[d] upon two traits 

that have been historically disfavored — national origin and ancestry.” (Id. at p. 893.) 

Accordingly, Darces is inapposite here.

Furthermore, section 6453 treats nonmarital children who can prove 

paternity using DNA tests identically to nonmarital children who cannot prove paternity 

using DNA tests. To do otherwise would raise independent equal protection concerns.

Because we reject amici’s argument, we do not address respondents’ 

contention the court improperly admitted the DNA evidence here.
21

a decedent, at the time of death, in the distribution of his or her estate. As recognized by 

the United States Supreme Court, state intestacy laws embody “the popular view within 

the jurisdiction of how a parent would have his property devolve among his children in 

the event of death . . . .” (Mathews v. Lucas, supra, 427 U.S. at pp. 514-515.)

Jackie also relies on Lalli, supra, 439 U.S. 259, which involved intestate 

succession. Lalli identified another state interest underlying laws limiting the right of 

nonmarital children to inherit from putative fathers who die intestate: Unless reasonable 

restrictions are imposed, such inheritance can significantly disrupt the administration of 

estates (both intestate and pursuant to a will). (Id. at p. 271.)

Lalli involved a constitutional challenge to a New York statute that allowed 

a nonmarital child to inherit from an intestate father only if a court had issued a paternity 

decree during the father’s lifetime. (Lalli, supra, 439 U.S. at pp. 261-262.) Drafted by a 

state commission of experts “in the practical problems of estate administration” (id. at 

p. 269), the statute “was intended to soften the rigors of previous law which permitted 

illegitimate children to inherit only from their mothers” (id. at p. 266). “Although the 

overarching purpose of the proposed statute was ‘to alleviate the plight of the illegitimate 

child,’ [the commission] considered it necessary to impose the strictures of [the

challenged statutory provision] in order to mitigate serious difficulties in the 

administration of the estates of both testate and intestate decedents.” (Id. at pp. 269-270.) 

The commission recognized that a putative father often “‘goes his way unconscious’” of 

the birth of a child. (Id. at p. 269.) The commission identified serious problems which 

would arise in both intestacy and will probate proceedings if nonmarital children were 

unconditionally entitled to notice and an opportunity to be heard. For example, “‘[h]ow

does one cite and serve an illegitimate of whose existence neither family nor personal 

representative may be aware? And of greatest concern, how [does one] achieve finality 

of decree in any estate when there always exists the possibility however remote of a 
22

secret illegitimate lurking in the buried past of a parent or an ancestor of a class of 

beneficiaries?’” (Id. at p. 270.)

10

In Lalli, a divided Supreme Court held the statute was “substantially related 

to the important state interests the statute is intended to promote” and therefore found no 

violation of the Equal Protection Clause. (Lalli, supra, 439 U.S. at pp. 275-276 (plur. 

opn. of Powell, J.).) Justice Powell’s plurality opinion observed that the statute was

intended “to ensure the accurate resolution of claims of paternity . . . , to minimize the 

potential for disruption of estate administration,” and to permit a man to defend his 

reputation against unjust paternity claims. (Id. at p. 271.) The plurality held the statute 

bore a substantial relationship to those purposes: “The administration of an estate will be 

facilitated, and the possibility of delay and uncertainty minimized, where the entitlement 

of an illegitimate child to notice and participation is a matter of judicial record before the 

administration commences.” (Id. at p. 271.)

Lalli recognized that in some cases, unfairness would result: “We do not 

question that there will be some illegitimate children who would be able to establish their 

relationship to their deceased fathers without serious disruption of the administration of 

estates and that, as applied to such individuals, [the statute] appears to operate unfairly. 

But few statutory classifications are entirely free from the criticism that they sometimes 

produce inequitable results. Our inquiry under the Equal Protection Clause does not 

focus on the abstract ‘fairness’ of a state law, but on whether the statute’s relation to the 

state interests it is intended to promote is so tenuous that it lacks the rationality 

contemplated by the Fourteenth Amendment.” (Lalli, supra, 439 U.S. at pp. 272-273.)

Here, section 6453, subdivision (b)(1), under which a paternity decree

entered during the father’s lifetime creates a natural parent-child relationship for purposes 

 

10 In California, “a petition for administration of a decedent’s estate” must be 

served on “[e]ach heir of the decedent, so far as known to or reasonably ascertainable by 

the petitioner.” (§ 8110, subd. (a), italics added.)
23

of intestate succession, is similar to (and more generous than) the New York statute 

upheld in Lalli.

11

 Section 6453 provides two additional methods by which paternity can 

be established, i.e., pursuant to section 6453(b)(2)’s “openly held out” standard and

section 6453, subdivision (b)(3)’s “impossibility” provision. Thus, Lalli upheld the 

constitutionality of a New York statute that was “similar [to], but even more restrictive”

than, section 6453. (Campbell ex rel. Campbell v. Apfel (9th Cir. 1999) 177 F.3d 890, 

894.)

As Lalli recognized, “the States have an interest of considerable 

magnitude” in “the just and orderly disposition of property at death.” (Lalli, supra, 439 

U.S. at p. 268.) Section 6453(b)(2)’s “openly held out” standard promotes the purpose of 

minimizing disruption of estate administration: If a putative father has openly held out a 

child as his own, the child is less likely to be a “‘secret’” or “‘unknown’ illegitmate[]”

with concomitant concerns of identification and finality discussed in Lalli, supra, 439 

U.S. at page 270. Equally important, section 6453(b)(2) carries out the decedent’s likely 

intent at the time of death as to the distribution of his estate. Because section 6453(b)(2) 

is substantially related to these important state interests, it does not violate the federal or 

state Constitutions. (Estate of Sanders, supra, 2 Cal.App.4th at pp. 476-477; Estate of 

Ginochio, supra, 43 Cal.App.3d at p. 416 [rejecting equal protection challenge under 

state and federal Constitutions to former Prob. Code, § 255, under which nonmarital child 

was heir of mother and of person who, in writing, acknowledged himself to be the 

father]; Campbell ex rel. Campbell v. Apfel, supra, 177 F.3d at p. 894.)

 

11

The New York statute contained the additional requirement that the 

paternity proceeding have been “instituted during the pregnancy of the mother or within 

two years from the birth of the child.” (Lalli, supra, 439 U.S. at p. 262.)
24

DISPOSITION

The order is affirmed. Respondents shall recover their costs on appeal.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

FYBEL, J.
1

FYBEL, J., Concurring.

I have concurred in the majority’s opinion because its analyses of Probate 

Code section 6453, subdivision (b), and the constitutional questions presented are correct. 

Under the facts of this case, a natural parent and child relationship cannot be established 

under that statute as between Amine Britel and A.S. because (1) no court order declaring 

paternity was entered during Amine’s lifetime, (2) Amine did not openly hold A.S. out as 

his own child, and (3) it was not impossible for Amine to have held A.S. out as his own 

child. Under the authorities cited in the majority opinion, the statute is constitutional.

I write separately to invite the Legislature to revisit Probate Code 

section 6453, subdivision (b), in light of the current state of DNA science and the societal 

interest in protecting children. Specifically, I urge the Legislature to add to the list of 

conditions for proving the existence of a natural parent and child relationship that 

paternity may be established by DNA evidence if the father, during his lifetime, 

acknowledged fathering the child, regardless of whether he publicly or openly held out 

the child as his own. 

In this case, it is without question that Amine is the father of A.S. The 

DNA test performed pursuant to court order found a 99.9996 percent probability that 

Amine was A.S.’s father. The statute as it currently stands does not address significant 

advances in genetic testing that have occurred since the statute was last substantively 

amended. This court may not, however, read into the statute an additional means for 

determining paternity in intestate succession cases. “The contention that scientific 

advances in genetic testing have rendered this construction of the statute obsolete by 

removing the uncertainty of proof that justified the restrictive nature of the statute is more 

appropriately addressed to the Legislature.” (14 Witkin, Summary of Cal. Law 

(10th ed. 2005) Wills and Probate, § 94, p. 159, citing Estate of Sanders (1992) 2 

Cal.App.4th 462, 476.) 
2

A purpose of the intestacy statutes is to effectuate the transfer of property 

the decedent would have wanted if he or she had made a will by determining the 

decedent’s likely intent. (Estate of Joseph (1998) 17 Cal.4th 203, 212.) Another 

important purpose of intestacy statutes is to serve our societal interests and values. “At 

issue in thinking about intestacy statutes is not only what a decedent wants, but what 

society wants.” (Gary, Adapting Intestacy Laws to Changing Families (2000) 18 Law 

and Ineq. J. 1, 13.) Probate Code section 6453, subdivision (b), as it now stands, 

addresses these societal interests and values in some respects. My suggestion is that the 

statute be amended to protect the intestate succession rights of those nonmarital children, 

especially minors, whose fathers have acknowledged them. This amendment would 

improve the statute by ensuring the financial well-being of an innocent child, even though 

his or her father did not openly hold him or her out as his own within the meaning of the 

statute as it is now worded. 

California has a rich history of protecting and supporting children. Courts 

have consistently recognized the rights of children, including nonmarital children. 

(Darces v. Woods (1984) 35 Cal.3d 871, 891 [“innocent children cannot be explicitly 

disadvantaged on the basis of their status of birth”]; Arizmendi v. System Leasing Corp. 

(1971) 15 Cal.App.3d 730, 737 [“To grant the right to sue for the wrongful death of the 

natural father of a legitimate minor child, to such child, and at the same time, solely by 

reason of status created by legislative enactment, to deny such right to an illegitimate

minor child appears to be an artificial, discriminatory barrier which should not be 

recognized or tolerated in the law.”]; Estate of Woodward (1964) 230 Cal.App.2d 113, 

118 [children born during or outside parents’ marriage treated the same for purpose of 

determining parents’ obligation of support].) The United States Supreme Court, too, has 

struck down laws discriminating against children whose parents were not married to each 

other when the children were born. (Clark v. Jeter (1988) 486 U.S. 456; Pickett v. Brown

(1983) 462 U.S. 1; Trimble v. Gordon (1977) 430 U.S. 762; Gomez v. Perez (1973) 409 
3

U.S. 535; Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164; Glona v. 

American Guarantee & Liability Ins. Co. (1968) 391 U.S. 73.)

Probate Code section 6453, subdivision (b) should be amended to permit 

establishment of a parent and child relationship by DNA evidence, and acknowledgement 

by the father that the child is his, albeit without publicly or openly holding out the child 

as his own. Accordingly, I respectfully urge the Legislature to permit children to inherit 

intestate based on (1) clear and convincing genetic evidence of paternity, and (2) clear 

and convincing evidence that the father, during his lifetime, acknowledged fathering the 

child. 

FYBEL, J.