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My sister died in california and her step daughter is claiming…

My sister died in california...
My sister died in california and her step daughter is claiming (she is 53 years old and single for several years) that my sister would have adopter her but for a 'legal barrier'. Could you please define 'legal barrier' and how often this is succesfull. Thank you
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Answered in 2 minutes by:
6/25/2010
Daniel P.
Daniel P., Attorney
Category: Estate Law
Satisfied Customers: 2,742
Experience: I have my own practice in Sarasota, FL- Estate Planning, Medicaid & VA law, Probate & Family Law
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Thank you for entrusting me with your legal issue. I will work diligently and quickly to answer your questions. I look forward to assisting you.

 

I'm very sorry for your loss.

 

To answer your question, "would've", "should've", "could've" does not matter in the eyes of the law. The fact that your sister "would've" adopted her but for a legal barrier has absolutely no merit in court. I don't know how else to say this but there is an absolutely 0% chance this argument would work for her.

Daniel P.
Daniel P., Attorney
Category: Estate Law
Satisfied Customers: 2,742
Experience: I have my own practice in Sarasota, FL- Estate Planning, Medicaid & VA law, Probate & Family Law
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Customer reply replied 8 years ago

On the 'petition for probate', california court document, there is a box that the stepdaughter has checked. It reads as follows: Decedent was survived by a stepchild who would have been adopted by decedent but for a legal barrier. (probate code, 6454)

This is what I am trying to understand. What is this 'legal barrier' she is claming, and what would she have to prove or document to support that claim. Would you please shed some light on this for me. It would help my family, who are very upset about this.

Thank you so much.

Ed

This is the probate code that the stepdaughter is referencing:

---------------------------------------------------------------------------------------------

6454. For the purpose of determining intestate succession by a
person or the person's issue from or through a foster parent or
stepparent, the relationship of parent and child exists between that
person and the person's foster parent or stepparent if both of the
following requirements are satisfied:
(a) The relationship began during the person's minority and
continued throughout the joint lifetimes of the person and the person'
s foster parent or stepparent.
(b) It is established by clear and convincing evidence that the
foster parent or stepparent would have adopted the person but for a
legal barrier.

------------------------------------------------------------------------------------------

 

First you must show both sections.

 

The first question to ask, did your sister have a will? If so, this does not apply at all cause this is only an issue if your sister died without a will.

 

The second question to ask is if the step-daughter had a relationship with your sister starting at prior to age 18? In otherwords, the step-daughter, step-mother relationship had to begin when the step-daughter was still a minor.

 

The third question is regarding the legal barrier. A legal barrier means for this purpose that your sister would've adopted her step-daughter but the legal barrier was that the step-daughters biological mother would not consent to it. Here is an article on that issue:

 

The legal barrier to adoption is usually the natural parent's

failure to consent.3 If it is clear the foster parent or stepparent would have adopted the child but for the natural parent's refusal to consent, to treat the relationship between the foster parent or stepparent and the foster child or stepchild the same

as a natural relationship for the purpose of intestate succession carries out the likely intent of the decedent and avoids denying inheritance on technical or legalistic grounds. But parental consent is not required to adopt an adult. Thus a requirement that the legal barrier must continue for life would preclude inheritance by virtually all adults from or through a foster parent or stepparent. Such a construction would frustrate

the underlying purpose of the statute to carry out the likely intent of the intestate decedent.

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Customer reply replied 8 years ago

You are helping me start to get my head around this. One: my sister left no will. Two:I believe the stepdaughter meets (a) above, but not (b). Both of the stepdaughter's natural parents are deceased. Father for 10 years, Mother for at least 2 to 3 years. Stepdaughter is 53 years old and single. If I am understanding you correctly, there appears to have been no legal barrier for my sister adopting her stepdaughter if she had wanted to. Do I understand this correctly, or am I missing some other way the court would accept what the stepdaughter is claiming?

Thank you so much for your help. Just may be able to have my first good sleep tonight in awhile.

Ed

Sorry for the delay response. I'm on east coast time so I had gone to bed for the night after my last response to you. I apologize.

 

How old was the 53 year old step daughter when she became your sister's step daughter?

 

Also the burden is by clear and convincing standard which means that the step daughter would have to prove that it was her step-mother's intention to adopt her all this time but they couldn't do it because the natural parents would not permit it.

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Customer reply replied 8 years ago

I am thankfull for you help. Stepdaughter was about 10. Does your area of expertise also include real estate in a probate court setting. if so i would like to asked you a seperate question on that, so you can get compensated on my unlimited plan with this web site. can i send you questions on this site
thanks

e

The legal barrier only truly existed while the step daughter was 10-18 years old, if the her natural/biological parents did not consent to the adoption. However, when the step daughter turned 18 she no longer had that legal barrier because as an adult she didn't need her parents permission to be adopted. From 18 until 53, no legal barrier existed and I think she would have a very difficult time trying to prove that their was one.

 

Yes, I'd be happy to assist you on other legal matters. I think when you write the question, you can request a specific expert. Alternatively, you can keep this thread going and just let me know your new question. You can hit "accept" for this question and then when I answer your new question you may hit "accept" again.

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Customer reply replied 8 years ago
Thank you for your prompt answer. I just found out if i kept this thread going i will have to pay extra charges beyond my account fees. so i will see if i can
Customer reply replied 8 years ago
Thank you for your prompt answer. I just found out if i kept this thread going i will have to pay extra charges beyond my account fees. so i will see if i can specify you for other questions.
Customer reply replied 8 years ago

Thank you for your prompt answer. I just found out if i kept this thread going i will have to pay extra charges beyond my account fees. so i will see if i can specify you for other questions. sorry to hit the reply again, but my other questions all relate to this issue. i would recommend you print out this thread for future reference

e

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