Papecek v. Gaughan

[1101]Opinion

SILLS, P. J. It is widely known that “where there is a will, there is a way.” The laws of intestate succession, however, provide us a way even where there is no will. This appeal requires us to chart our “way,” and presents an issue of first impression: Is a half sibling a “natural brother or sister" under Probate Code former section 6408.5, subdivision (c) (now § 6408, subd. (d))? If so, respondent Thomas Gaughan, the half brother of the decedent, along with the children of the decedent’s half sister, is entitled to the estate of the decedent; if not, appellant Lily Papacek and nine other maternal cousins of decedent are the next in succession. The trial court held that the term “natural brother or sister" includes half siblings. We agree with the trial court, and affirm.

Facts

The facts are not in dispute and can be easily summarized. The decedent, Hazel Marie Corcoran, died on July 30, 1989, and has no surviving spouse, parents, or children. She also left no valid will.1 Hazel was bom out of wedlock to Merle Campbell and Michael Gaughan in 1922. There was no evidence presented that Michael Gaughan ever acknowledged Hazel as his daughter. Hazel was raised by her mother, who died in 1982. Hazel’s father married another woman in 1931 and had two children, Monica Gaughan and respondent Thomas Gaughan.

Discussion

Probate Code section 6408,2 one of the laws of intestate succession, concerns the definition of a “parent and child relationship.” Subdivision (d) of that statute (formerly § 6408.5, subd. (c)) provides as follows: “If a child is bom out of wedlock, neither a parent nor a relative of a parent (except for the issue of the child or a natural brother or sister of the child or the issue of that brother or sister) inherits from or through the child on the basis of the relationship of parent and child between that parent and child unless both of the following requirements are satisfied: [fl] (1) The parent or a relative of the parent acknowledged the child. [ft| (2) The parent or a relative of the parent contributed to the support or the care of the child.” (Italics added.) Essentially, the statute prohibits inheritance by or through a parent of a child born out of wedlock if that parent does not acknowledge or support the child, except for “natural” brothers and sisters.

[1102]