Opinion
KAUS, J. Appellant Trudy Ann Hall challenges the constitutionality of the rule of Evidence Code section 621, subdivision (a), that “the issue of a [463]wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”1 Hall contends that application of the presumption to bar her from proving that Willis Cornelious, deceased, was in fact her natural father, denies her due process.
Willis Cornelious died intestate, leaving neither a spouse nor legitimate children. His surviving sisters nominated Hettie Taylor to administer his estate. Trudy Hall applied for letters of administration on the basis of Probate Code section 422, which gives priority to children over siblings, or their nominees. Section 422 requires the person claiming priority under that section to be entitled to succeed to all or part of the decedent’s estate. To meet that requirement Hall had to show that a parent-child relationship existed between herself and decedent before his death. (Prob. Code, § 255, subd. (a).) The existence of such a relationship may be established for these purposes by showing an unrebutted presumed relationship or one judicially declared under the Uniform Parentage Act, set forth in Civil Code section 7000 et seq.2 (Prob. Code, § 255, subd. (d).)
The trial court found that the requisite parent-child relationship did not exist, because under Evidence Code section 621, subdivision (a) Trudy was conclusively presumed to be the daughter of David Fuller. The court therefore appointed Hettie Taylor as administratrix of Cornelious’ estate.
Trudy appeals from the order denying her petition for appointment as administratrix. (See Prob. Code, § 1240.) She contends that application of the conclusive presumption of Evidence Code section 621, subdivision (a) to bar her from proving that Willis Cornelious was, in fact, her natural father, denies her due process.
The trial court held a hearing on Trudy’s due process challenge to Evidence Code section 621, subdivision (a). At that hearing the following facts were established or accepted as proven:
Trudy’s mother, Arzina Fuller, was married to David Fuller. They lived together as husband and wife from the time of their marriage up to the time [464]of the hearing, including the time when Trudy was conceived. David Fuller was named as Trudy’s father on her birth certificate. Although David was not impotent or sterile during the time of Trudy’s conception, Arzina said they had not been sleeping together during that period. She stated that Willis Cornelious was Trudy’s natural father. Trudy was informed of this when she was 15 years old. From that time on until Willis’ death in 1980, Trudy visited him, accompanied him on errands and occasionally stayed overnight in his home. Willis identified Trudy as his daughter to his friends. Trudy continued to live as part of the Fuller household until she became emancipated. David Fuller was never told that Trudy was not his child.3 Trudy was 27 years old and had a family of her own at the time of the hearing.
There is also evidence to prove that Trudy is not David Fuller’s daughter. She has the genetic trait for sickle cell anemia; this means that either her natural mother or her natural father must carry the trait. Since neither Arzina nor David Fuller carried it, it is biologically impossible for David to be Trudy’s natural father.
As noted, the trial court rejected Trudy’s due process attack on the conclusive presumption of Evidence Code section 621, subdivision (a) that she was the daughter of her mother’s husband. She contends that the ruling preventing her from showing a parent-child relationship with Willis Cornelious is unreasonable and a denial of due process.
“The principle established by section 621 is of great antiquity, having been a maxim of the Roman law, which was copied by the common law. (Estate of Walker, 180 Cal. 478, 485 [181 P. 792].) It is referred to in 2 Coke Upon Littleton, section 244a. It has been remarked in Estate of Mills, 137 Cal. 298, 301 [70 P. 91], that Shakespeare was familiar with the rule, for he made reference to it in King John, act I, scene 1: ‘King John.— Sirrah, your brother is legitimate; Your father’s wife did after wedlock bear him; And, if she did play false, the fault was hers; Which fault lies on the hazards of all husbands That marry wives.’” (S. D. W. v. Holden (1969) 275 Cal.App.2d 313, 316 [80 Cal.Rptr. 269].)
The conclusive presumption of legitimacy of section 621, subdivision (a) is, of course, a rule of substantive law. (Kusior v. Silver (1960) 54 Cal.2d 603, 619 [7 Cal.Rptr. 129, 354 P.2d 657].) It codifies the principle that when husband and wife are living together as such, the integrity of the family should not be impugned. “The husband is deemed responsible for his wife’s child if it is conceived while they are cohabiting; he is the legal father and the issue of biological paternity is irrelevant.” (Keaton v. Keaton [465](1970) 7 Cal.App.3d 214, 216 [86 Cal.Rptr. 562].) The rule promotes important social policies: preservation of the integrity of the family, protection of the welfare of children by avoiding the stigma of illegitimacy and keeping them off welfare rolls, and insurance of the stability of titles and inheritance. (Kusior v. Silver, supra, 54 Cal.2d at p. 619; S. D. W. v. Holden, supra, 275 Cal.App.3d at pp. 316-317; In re Lisa R. (1975) 13 Cal.3d 636, 650-651 [119 Cal.Rptr. 475, 532 P.2d 123]; County of San Diego v. Brown (1978) 80 Cal.App.3d 297, 303 [145 Cal.Rptr. 483].)
The conclusive presumption of Evidence Code section 621, subdivision (a) has consistently been upheld against constitutional attack despite the scientific advances that have increased the reliability of blood tests. (See Kusior v. Silver, supra, 54 Cal.2d 603; County of San Diego v. Brown, supra, 80 Cal.App.3d 297; In re Marriage of B. (1981) 124 Cal.App.3d 524 [177 Cal.Rptr. 429]; Vincent B. v. Joan R. (1981) 126 Cal.App.3d 619 [179 Cal.Rptr. 9].) In Kusior, we concluded that the Legislature’s failure in 1953 to enact that part of the Uniform Act on Blood Tests to Determine Paternity (former Code Civ. Proc., §§ 1980-1980.7; now Evid. Code, §§ 890-897) which specifically would have enabled the result of a blood test to overcome the conclusive presumption of legitimacy indicated a legislative intent to stand firm on the conclusive presumption.
The presumption of legitimacy has also been the subject of much commentary and criticism. (See, e.g., Note, California’s Conclusive Presumption of Legitimacy: Jackson v. Jackson and Evidence Code section 621 (1968) 19 Hastings L.J. 963; Comment, California’s Conclusive Presumption of Legitimacy—Its Legal Effect and Its Questionable Constitutionality (1962) 35 So.Cal.L.Rev. 437; Recent Developments, California’s Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy (1968) 20 Stan.L.Rev. 754; Comment, The Irrebuttable Presumption of California Evidence Code section 621 (1979) 12 U.C. Davis L.Rev. 452.) In apparent response to such commentary, the Legislature recently adopted limited exceptions which essentially take the form of a statute of limitations. In 1980 and 1981, it added subdivisions (b) through (g) to section 621, which allow the mother or the presumed father within two years of the child’s birth to present blood test evidence disputing the presumed paternity. The probable rationale for this limited exception was described in a law review article: “In the case of a young child the most palpable relation that anyone has to the child is a biological relationship. The child has no personality, he can communicate with no one, and no one can be said to have exercised a formative influence on his character. But in the case of an older child the familial relationship between the child and the man purporting to be the child’s father is considerably more palpable than the biological relationship of actual paternity. A man who has lived with a child, treating it as his son [466]or daughter, has developed a relationship with the child that should not be lightly dissolved and upon which liability for continued responsibility to the child might be predicated. This social relationship is much more important, to the child at least, than a biological relationship of actual paternity. . . . [¶] Where a strong social relationship to the child has not yet developed, the only basis for a duty on the husband’s part to support the child is biological fatherhood of the child. Inasmuch as blood tests are the most reliable evidence of nonpaternity, they should be admissible on the issue of biological paternity in all cases where this issue is the recognized foundation of liability for child support—cases . . . that involve a contest over the legitimacy of a young child. . . . [¶] The adoption of a statute of limitations in lieu of the present tangle of evidentiary rules offers the obvious advantage of greatly simplifying the law and at the same time molding the law to closer conformity with the relevant policies. . . . The legislature should address itself squarely to the problem of defining a period after the birth of a child during which biological paternity will be determinative of a husband’s duty to support his wife’s child, and it should announce clearly that after this period has expired biological nonpaternity shall be irrelevant . . . .” (Recent Developments, California’s Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy, supra, 20 Stan.L.Rev. at pp. 761-765; see also In re Marriage of B., supra, 124 Cal.App.3d at pp. 530-531.)
In the present case, appellant’s constitutional attack on the conclusive presumption is based solely on its application to her. She contends that it denies her due process in preventing her from proving that Cornelious was her natural or biological father. She argues that her interest in doing so outweighs the state’s interest in preventing her from rebutting the presumption. We do not agree.
The cases on which appellant primarily relies—In re Lisa R., supra, 13 Cal.3d 636 and Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208]—differ significantly from the present situation. In both Stanley and Lisa R., the putative fathers were seeking to establish their legal relationship with children who otherwise had no parents and were wards of the state. In Stanley it was undisputed that the putative father sired, lived with, and supported the children. Upon the mother’s death, Illinois law automatically removed the children from the putative father’s custody without any showing of his unfitness as a parent. The United States Supreme Court held that Stanley was constitutionally entitled to a hearing on his fitness before the children could be removed from his custody.
In Lisa R., Victor sought to establish that he was the natural father of a five-year-old ward of the court whose mother and presumed father v/ere dead. Victor had lived with Lisa’s mother before and after Lisa’s birth, and [467]his name appeared on her birth certificate. He was deprived of Lisa’s custody when her mother returned to her husband and took Lisa with her. After learning that Lisa was a ward of the court, Victor sought to gain custody on the ground that he was Lisa’s natural father. He was prevented from doing so by the presumption (former Evid. Code, § 661) declaring Lisa’s mother’s husband to be her father. Although that particular presumption could be rebutted by the husband, wife or the state, it was conclusive as to Victor.
We held that due process required allowing Victor the opportunity to rebut the presumption of parentage because the state’s interest in maintaining the presumption was outweighed by Victor’s substantial private interest in establishing and enjoying his relationship as Lisa’s father. We found no competing private interests against Victor’s claim and noted that, as in Stanley, the private interests which Victor sought to preserve “arose from more than the mere biological fact that he is Lisa’s natural father.” (13 Cal.3d at p. 649.)
In the present case, Trudy’s private interests are simply not as weighty as those of the putative fathers in Stanley and Lisa R. who sought to care for and nurture their own children. Here, the alleged natural father is dead so that there is no possibility of an ongoing relationship. All Trudy can hope to gain is the right to inherit Willis’ estate, an interest of a lower order which, of course, is pitted against the competing similar interests of Willis’ sisters.
The state’s interests, by contrast, are substantial. The policies promoted by the conclusive presumption of legitimacy are well-served by its application here. The familial relationship Trudy had with David Fuller was far more palpable than the biological relationship she had with Willis Cornelious. Trudy was reared and supported by David, who was named as her father on her birth certificate. He was never told of the present proceeding, and he died thinking he was Trudy’s father. Now, after 27 years as the daughter of David Fuller, Trudy seeks to establish that another man was her father, and she does so not for reasons of filial piety but solely for financial considerations. Her equities are simply not in the same class as those of the fathers in Stanley and Lisa R. The due process clause does not compel a holding equating the natural urge to look after one’s flesh and blood with the equally natural, but somewhat baser, impulse to take care of property one’s biological father has failed to dispose of by will. In sum, Trudy has failed to advance a reason why the Constitution demands that the legislative judgment concerning her parentage should be voided.
[468]The order is affirmed.
Mosk, J., Richardson, J., Broussard, J., Reynoso, J., and Grodin, J., concurred.
Evidence Code section 621, subdivision (a) provides: “Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”
Subdivision (b) allows the mother or the presumed father to rebut the presumption of subdivision (a) by presenting blood test evidence of nonpaternity to the court within two years of the child’s birth. These limited exceptions to the conclusiveness of the presumption were enacted in 1980 and 1981.
Hall alleges that she will be able to show the existence of parent-child relationship with Cornelious by presenting evidence of a presumed relationship under Civil Code section 7004, subdivision (a)(4), which sets forth a rebuttable presumption of parentage where a man “receives the child into his home and openly holds out the child as his natural child."
David Fuller died sometime after the trial court hearing.