DECEMBER 3, 2001 VOLUME 9, NUMBER 23
A recent California appellate case, as Judge Morrison of California’s third Appellate District writes at the start, “illustrates the danger of using preprinted wills. This danger, ill-described in the text of the opinion, may be better stated as “Be careful of what you fail to wish for.”
Decedent Haskell J. Dye passed away five months after his second wife, Eleanor, died in 1999. As Haskell failed to change his 1989 will after his wife’s death in January 1999, his estate lapsed and thus passed to his “issue” pursuant to California intestacy law.
Haskell Dye left an adopted son, Scott, whose mother was Eleanor, one biological son, Phillip Joe Battles, as well as children of another biological son, Jimmie Dean Battles, who predeceased his father. The Haskell estate was divided into thirds— one third to Scott Dye, one third to Phillip Joe Battle, and one third to Jimmie Dean Battle’s children (Jimmie Dean Battle had died before Mr. Dye). Here it must be noted that Haskell Dye’s biological sons did not share his name because when their mother, Haskell’s first wife, remarried, Haskell consented to his sons’ adoption by their stepfather.
Scott Dye, Haskell’s adopted son, appealed the order granting a share of the estate to Haskell’s biological descendants based on the assertion that Haskell did not intend for his adopted-out sons to have any of his estate. He also pointed out that there would have been no doubt that the biological sons were disinherited up until 1985.
The California legislature passed a statute in that year which permits adopted-out children to retain some privileges of the blood relationship so long as both of two conditions apply:
The natural parent and the adopted person lived together at any time as parent and child, and
The adoption was by the spouse of either of the natural parents.
So if Haskell Dye’s biological issue were to inherit at all, it would be because of the 1985 change to California’s intestacy law.
The California court took great pains to explain that the adopted son’s, Scott Dye’s, arguments about his father’s intentions fly in the face of accepted wisdom and voluminous case law regarding such. Judge Morrison reasoned that had Haskell Dye truly intended that his biological issue receive nothing, he could have clearly disinherited them or left them a nominal sum. Estate of Dye,October 9, 2001
Had Haskell Dye lived and died in Arizona his two biological sons would probably share in his estate. Although there is a conflict between two Arizona statutes a 1996 case based on similar facts (Estate of Ryan, Ariz. Court of Appeals) gives priority to the statute that protects a child’s right to inherit even after adoption by a step-parent.
The result in Mr. Dye’s case was different from that in another, similar case reported last April inElder Law Issues. In that case (“Adoption Cuts Off Automatic Inheritance From Grandmother“) three children adopted by thier grandparents after the death of their parents did not inherit from the other side of their family; an apparently inconsistent result is reached in this case because the rules are different for adoptions by step-parents.