Some step children and foster children may qualify as heirs to a deceased step or foster parent’s estate and so qualify to inherit when their deceased step parent or foster parent died without a will.

Until now, it was widely accepted that a step child or foster child could only inherit if the following two conditions were both conditions of Probate Code section 6454 are satisfied: (1) the relationship began during the step child/foster child’s minority and continued throughout their joint lifetimes; and (2) it is established by clear and convincing evidence that the step parent / foster parent would have adopted the step child / foster child but for a legal barrier.

The legal barrier requirement eliminates adult step children and foster children from qualifying under section 6454 because adult adoptions do not require any consent of the biological parent; the barrier is thus removed.

Now, however, the California Court of Appeal, Fourth Appellate District, issued its opinion in Nick Zambito v. Tracy Martino (Super Ct. No. 37-2020-000002011-PR-LA-CTL) that allows step children and foster children to qualify as an heir under section 6453.

Unlike section 6454, section 6453 is not specific to step children. Section 6453 incorporates the various ways that a parent child relationship can be established under the Uniform Parentage Act (“UPA”). As relevant, a child does not have to be a biological child, an adopted child, or even a step child, for a parent child relationship to be established under section 6453. Section 7661 of the Family Code, a section within the UPA, defines a “natural parent” as “a nonadoptive parent established under this part, whether biologically related to the child or not.”

In Nick Zambito v. Tracy Martino, the decedent died intestate (i.e., without a will) and the decedent’s step child initially petitioned to inherit under section 6454 the pathway specifically and uniquely provided for step children and foster children to establish inheritance rights. However, the step child conceded that he did not qualify because once his biological father had died the legal barrier to adoption was removed; thus, the step child no longer qualified under section 6454.

The step child amended his petition to assert that his deceased step father was his “natural parent”, for inheritance purposes, under section 6453 of the Probate Code.
One way that a parent child relationship can be established under UPA for inheritance purposes under section 6453 is if a person receives a child into his home and openly holds out the child as his natural child under section 7611(d) of the Family Code.

As the court opinion in Nick Zambito says, “… a man ‘with no biological connection to the mother, and no way to satisfy the statutory presumption of paternity may nevertheless be deemed a presume father’ under Family Code section 7611, subdivision (d), if he can prove ‘an existing familial relationship with the child,’ a bond the likes of which ‘should not lightly be dissolved’. [(citing, In re D.M. (2012) 210 Cal. App. 4th 541, 554; AG v. County of Los Angeles (2018) 28 Cal. App. 5th 373, 380.] Thus, to qualify under section 7611(d) of the Family Code, the person claiming to be a child must prove that the parent both “received the child into his or her home” and “openly held out the child as his or her natural child.”

In sum, the requirements under sections 6453 and 6454 are different and it is possible, at least in California’s Fourth Appellate District at present, for a step child to establish a parent child relationship under one section but not the other. The appellate court harmonized section 6453 and 6453 based on each statute own terms and the fact that section 6454 did not expressly limit a step child to establishing a parent child relationship under section 6454.

The foregoing discussion is not legal advice. Consult a qualified estate planning attorney for fact specific legal guidance. Dennis A. Fordham, Attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”