Stennett

I respectfully dissent. Due to modern DNA testing, a nonmarital child can easily establish whether he or she is a "child" of a decedent (even after the parent's death). But under the majority's interpretation of the wrongful death statute, a nonmarital child must overcome burdens to establish standing that are not required of other children. The nonmarital child must rely on the father to declare parentage during his lifetime, or rely on the mother to fortuitously file a paternity action before the father's death. These burdens are not substantially related to an important government purpose, given the ready access and reliability of modern DNA testing. Thus, I would hold that the wrongful death statute, as it is being applied here, violates the equal protection clause.

I would find that under these circumstances the plain meaning of the word "children" in the wrongful death statute should control. There is a conclusive DNA

*891 test that proves the decedent Amine Britel was the father of A.S. In this case it is not necessary to rely on intestacy laws in order to interpret the wrongful death statute. (See Estate of Cleveland (1993) 17 Cal.App.4th 1700 , 1705-1706, 22 Cal.Rptr.2d…

*287 This case presents two issues: does the nonmarital biological child of an absentee father who never openly held her out as his own have standing under Code of Civil Procedure section 377.60 ( section 377.60 ) to sue for his wrongful death if she failed to obtain a court order declaring paternity during his lifetime? 1 If she does not have standing, does section 377.60 violate the state or federal equal protection clauses?

We conclude the child does not have standing under the circumstances presented here, and we find no equal protection violation. As explained below, the legislative history of California's wrongful death statute establishes that standing to sue for wrongful death turns on whether the plaintiff has a right to inherit from the decedent under California's intestate succession statutes. In this particular case, the child has no right to inherit from the decedent *876 because he never openly held her out as his own and because she *288 never obtained a court order declaring paternity during his lifetime. It follows that she does not have standing to sue for his wrongful death. Notably, a contrary conclusion would deprive the decedent's parents and siblings of…