Estate of Britel v. Britel

Concurring. — I have concurred in the majority’s opinion because its analyses of Probate Code section 6453, subdivision (b), and the constitutional questions presented are correct. Under the facts of this case, a natural parent and child relationship cannot be established under that statute as between Amine Britel and A.S. because (1) no court order declaring paternity was entered during Amine’s lifetime, (2) Amine did not openly hold A.S. out as his own child, and (3) it was not impossible for Amine to have held A.S. out as his own child. Under the authorities cited in the majority opinion, the statute is constitutional.

I write separately to invite the Legislature to revisit Probate Code section 6453, subdivision (b), in light of the current state of DNA science and the societal interest in protecting children. Specifically, I urge the Legislature to add to the list of conditions for proving the existence of a natural parent and child relationship that paternity may be established by DNA evidence if the father, during his lifetime, acknowledged fathering the child, regardless of whether he publicly or openly held out the child as his own.

In this case, it is without question…

*132 Opinion

Amine Britel died intestate in 2011. Appellant Jackie S., the mother of A.S., a child born out of wedlock, petitioned to administer Amine’s estate and for A.S. to be declared Amine’s heir under Probate Code section 6453, subdivision (b)(2) (section 6453(b)(2)). 1 Under section 6453(b)(2), a nonmarital child may establish that he or she is the natural child of an intestate decedent by proving the decedent “openly held out the child as his own.”

The court denied Jackie’s petitions. It granted the petition of respondent Mouna Britel (Amine’s adult sister) to administer Amine’s estate, which petition listed respondent Rhita Britel (Amine’s mother) as Amine’s surviving parent.

We affirm the court’s order. In doing so, we conclude section 6453(b)(2)’s phrase “openly held out” requires the alleged father to have made an unconcealed affirmative representation of his paternity in open view. We also conclude substantial evidence supports the court’s finding Amine did not openly hold out A.S as his child. Finally, we conclude section 6453(b)(2) does not violate the state or federal equal protection rights of nonmarital children or of nonmarital children who can prove…

FACTS

Evidence prior to A.S.’s birth In the fall of 1999, Amine and Jackie met at Harvard Business School and developed a romantic relationship. In the early summer of 2000, they graduated. Jackie went to work in Atlanta, Georgia, while Amine moved to Newport Beach, California.

1 All statutory references are to the Probate Code unless otherwise stated. We sometimes refer to children born out of wedlock as nonmarital children. For convenience and to avoid confusion, we sometimes refer to the parties and the decedent by their first names. We mean no disrespect.

2 In August 2000, Jackie phoned Amine and told him she was pregnant. The next day, Amine sent Jackie an e-mail message saying he was “devastated,” he would never be able to share the news with his parents, and that having a child out of wedlock was contrary to his Muslim religion and his culture and would bring him “a total shame [he would] have to bear for the rest of [his] life.” Amine continued: “Please understand that I do love you but I am just not ready to be a father right now. I want us to have a child through a legitimate marriage and not outside of wedlock. We need to live together, learn about each other, and…