Law of Wills, 2016A

In the course of its study over the years that followed, the Law Revision Commission submitted
various recommendations to the Legislature to revise the original Probate Code in various ways,
some in line with the Uniform Probate Code, some not.
So far as the law of intestate succession was concerned, the Law Revision Commission had as its
purpose to “provide” new “rules,” framed in light of “changes in the American family and in public
attitudes,” “that are more likely” than the old ones “to carry out ... the intent a decedent without a
will is most likely to have had,” evidently at the time of death, and to do so in a “more efficient and
expeditious” manner. (Tent. Recommendation Relating to Wills and Intestate Succession
(Nov.1982) 16 Cal. Law Revision Com. Rep. (1982) pp. 2318, 2319.) From all that appears, the
Legislature had the same purpose. (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1706, 22 Cal.Rptr.2d
590.)
In 1983, the Legislature added section 6408 to the Probate Code. (Stats.1983, ch. 842, § 55, pp.
3083-3084.)
Probate Code section 6408, subdivision (a)(2), provided: “The relationship of parent and child exists
between an adopted person and his or her adopting parent or parents. The relationship between a
person and his or her foster parent, and between a person and his or her stepparent, has the same
effect as if it were an adoptive relationship if (i) the relationship began during the person's minority
and continued throughout the parties' joint lifetimes and (ii) it is established by clear and convincing
evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.”
(Stats.1983, ch. 842, § 55, p. 3083.) One such legal barrier exists “where ... a parent of the” “foster
child or stepchild” “refuses to consent to the adoption.” (Sen. Com. on Judiciary, Rep. on Assem.
Bills No. 25 & 68 (1983-1984 Reg. Sess.) 3 Sen. J. (1983-1984 Reg. Sess.) p. 4882 [hereafter Senate
Committee on Judiciary Report].)
Probate Code section 6408, subdivision (a)(2), was new to California law. (Senate Committee on
Judiciary Report, supra, 3 Sen. J. (1983-1984 Reg. Sess.) p. 4882; see Estate of Cleveland, supra, 17
Cal.App.4th at p. 1704, 22 Cal.Rptr.2d 590; Estate of Claffey (1989) 209 Cal.App.3d 254, 256, 257
Cal.Rptr. 197.) Moreover, it appears to have been, and to have remained, unique to this state among
American jurisdictions. (Meadow &Loeb, Heirs Unapparent (June 1994) L.A.Law. 34, 38; Note,
Intestate Succession for Stepchildren: California Leads the Way, but Has It Gone Far Enough? (1995) 47
Hastings L.J. 257, 260 [speaking only of stepparents and stepchildren]; Mahoney, Stepfamilies in the
Law of Intestate Succession and Wills (1989) 22 U.C. Davis L.Rev. 917, 929 [same]; see Estate of Cleveland,
supra, 17 Cal.App.4th at pp. 1704-1705, fn. 6, 22 Cal.Rptr.2d 590; see also 8 West's U. Laws Ann.
(1983) U. Prob.Code (1969) § 2-109, pp. 66-67 [making no provision for foster parents and foster
children or stepparents and stepchildren]; cf. id., § 1-201(3), p. 30 [excluding from the definition of a
“child,” in pertinent part, “any person who is only a stepchild ... [or] a foster child”]; id. (1997 supp.)
§ 1-201(5), p. 12 (1990 rev.) [same]; former Prob.Code, § 26, added by Stats.1983, ch. 842, § 21, p.
3026 [same]; id., as amended by Stats.1984, ch. 892, § 4, p. 2988 [deleting the exclusion]; but see Estate
of Claffey, supra, 209 Cal.App.3d at p. 256, 257 Cal.Rptr. 197 [stating, incorrectly, that this “innovative
portion” was “adapted from the Uniform Probate Code”].)
Probate Code section 6408, subdivision (a)(2), was proposed to the Legislature by the Law Revision
Commission. It was not submitted as a recommendation originally. (Tent. Recommendation
Relating to Wills and Intestate Succession, supra, 16 Cal. Law Revision Com. Rep. (1982) at pp. 2459-
230