Child born out of wedlock after her alleged father's death may have standing under wrongful death statute

Law Reporter, Dec 1998

Cheyanna M. A.C. Nielson Co., 78 Cal. Rptr. 2d 335 (Ct. App. 1998).

A California appellate court held a child born out of wedlock after her alleged father's death may have standing to sue under California's wrongful death statute, CAL. Civ. PROC. CODE 377.60 - 377.62.

Here, a child born out of wedlock filed a wrongful death action, seeking compensation for the death of her alleged father. Plaintiff was born after her alleged father was killed. The trial court granted defendant summary judgment, ruling that plaintiff did not have standing because the decedent had not held her out as his child.

Reversing, the appellate court noted the wrongful death statute is based on the laws of intestate succession, meaning that only "heirs" may bring suit. The intestacy statute, CAL. PROB. CODE 6453, states that a parent-child relationship is indicated where a biological father held the child out as his own or, if that was impossible, if paternity is established by clear and convincing evidence.

Citing legislative history and case law, the court said the term "child," as used in the intestacy laws, means a human being born alive, not an unborn child. Because her alleged father died before plaintiff was born, he could not have held her out as his "child." Thus, plaintiff was entitled to an opportunity to establish decedent's paternity by clear and convincing evidence. Accordingly, the court remanded.

Plaintiff's Counsel

*Roland Wrinkle, Woodland Hills, Cal. [Documents in this case are available through the Court

Documents section at p. 403, courtesy of Mr. Wrinkle.]

[Comment: In Buchea v. United States, 154 F.3d 1114 (9th Cir. 1998), the Ninth Circuit Court of Appeals held a child who was adopted by her grandparents could not recover for her birth father's death under Alaska's wrongful death statute, ALASKA STAT. 09.55.580. The court said that because the state had recognized the adoption by issuing a substitute birth certificate listing the child's grandparents as her legal parents, the parent-child relationship between the child and her birth father had been severed.]