Trusts and Estates

Estate of Franco

Cite as A165840
Filed January 30, 2023
First District, Div. Three

By Jaime B. Herren
Holland & Knight LLP

Headnotes: Natural Parentage —Presumption of Cohabitating Spouses

Summary:  Summary judgment was improper where the presumption of natural parentage was applied without the prerequisite factual finding of cohabitation of spouses. 

In an intestate probate proceeding, the trial court granted motion for summary judgment barring Bertuccio from proving the decedent was his biological father because Bertuccio was presumed to be a natural child of his mother’s marriage to another.  The decision was based on stipulated facts of marriage at the time of Bertuccio’s conception and birth, and identification of his mother’s husband on his birth certificate.  Thus, Bertuccio could not establish himself as an intestate heir.

The appellate court reversed.  The laws of succession are statutory and the right to inherit is not an inherent or natural right.  As a policy matter, California law protects the integrity of family and a child may be precluded from proving biological parentage where legal parentage has been conclusively established.  The presumption of natural parentage of married spouses applies only where spouses were cohabitating at the times of conception and birth of the child.  The trial court did not make the requisite finding that Bertuccio’s mother was cohabitating with her husband at the relevant times.  No admissible evidence in the record established cohabitation and a triable issue of fact existed.  The case was remanded for further proceedings.

Forgot Password

Enter the email associated with you account. You will then receive a link in your inbox to reset your password.

Personal Information

Select Section(s)

CLA Membership is $99 and includes one section. Additional sections are $99 each.