Price Law Firm APC

Equitable Adoption of a Step-Child or Foster Child
father and son, father, son

R. Sam Price, J.D., LL.M. Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization

Under Probate Code §6450, the relationship of parent and child only exists for the purposes of intestate succession (if there was no will) if that child is (1) a natural child, or (2) an adopted child. The most common scenario is that a child may inherit through a deceased parent, however, it is also possible for a parent to inherit from a deceased child. (Probate Code §6402.)

Although the general rule is that the relationship of parent and child only exists for either a natural child or an adopted child, there is an exception for that may still allow for a person who is neither the natural child or adopted child to be considered a child. In the event that a step-child or foster child cannot establish the existence of a parent-child relationship as either the natural child or adopted child, don’t despair – all may not be lost. 

California Probate Code §6454 establishes the concept of an “equitable adoption,” whereby, for intestate succession purposes (when there is no will), the relationship of parent and child exists between a step-child or foster child and person’s step-parent or foster parent if both of the following requirements are satisfied:

(a) The relationship began when the step-child or foster child was under 18 years old and continued throughout the joint lifetimes of the step-child or foster child and the step-parent or foster parent; and
(b) It is established by clear and convincing evidence that the step-parent or foster parent would have adopted the step-child or foster child but for a legal barrier. The most common legal barrier is that the step-parent or foster parent cannot get the consent of the natural parent(s) to the adoption, which is required until the child reaches age 18. However, this legal barrier is eliminated at age 18 and then the step-parent or foster parent can adopt the step-child or foster child as an adult adoption.

For example, Alvin and Harriett are married and have a natural child, Candice. Alvin and Harriett divorce, and Harriett is given full custody of Candice, who is aged 5. Harriett marries William when Candice is aged 8. William wishes to adopt Candice and he would have, except that Alvin does not consent to William adopting Candice. Alvin’s refusal to allow the adoption by William is a legal barrier to the adoption of Candice.  William dies  without a will when Candice is 16 years old. The two requirements are satisfied because (1) the relationship of step-parent and step-child between William and Candice started when Candice was under age 18 and continued through the joint lifetimes of William and Candice, and (2) it can be established that William would have adopted Candice but for a legal barrier. Thus, Candice may be considered the child of William for the purposes of intestate succession.

In sum, the treatment of step-children and foster children under the California Probate Code can be complex. Although generally, step-children and foster child are not considered the children of the step-parent or foster parent, there are certain circumstances that allow for a step-child or foster child to be considered as the child of the parent for intestate succession purposes.

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