I am not an expert on Zen Buddhism. However, even if I had spent decades of my life studying its tenets (instead of, for example, baseball stats from the 1920’s), I would hesitate to call myself an expert because of what would be my resulting adherence to shoshin, the Zen Buddhist concept of the “beginner’s mind.” Shoshin encourages its practitioners to approach their studies as beginners, and cautions against the arrogance and dogmatism that often characterize the self-proclaimed expert who assumes he already knows all there is to know about a subject.
Lawyers and legal professionals, in particular, would do well to adopt a measure of shoshin in the practice of their chosen pursuit, in which no matter how much expertise one has acquired over their years of experience, they are only one appellate decision away from looking like a complete fool.
Take the question of intestate succession for stepchildren, for example. For decades, the experienced probate attorney has been able to rely on Probate Code section 6454, which dictates that a stepchild may inherit from their intestate stepparent only if: (1) the parent-child relationship began during the stepchild’s minority and continued throughout the stepparent and stepchild’s joint lifetimes; and (2) clear and convincing evidence shows that stepparent would have adopted stepchild but for a legal barrier.
Simple and straightforward – the stepchild is either an intestate heir or they are not. The experienced probate expert can answer the question of intestate succession with ease and be on the golf course twenty minutes later.
Not so fast, says Estate of Martino (2023) 96 Cal.App.5th 596.
Estate of Martino sure looked like an easy case. Petitioner Nick Zambito, stepchild to decedent Nick Martino, petitioned to be deemed an heir to his intestate stepfather. Martino’s biological children objected. But Zambito and his stepsiblings agreed on essentially all of the relevant facts – though Zambito and his stepfather maintained a father-son relationship through virtually the entirety of Zambito’s lifetime, up to and including the stepfather’s final days, it was undisputed that there was no legal barrier that prevented the stepfather from adopting his stepson. Accordingly, there was no way that Zambito could meet the requirements of section 6454, and, consequently, no way for him to establish intestate heirship.
“Case closed!” shouts the probate expert, who proceeds to turn off all of the lights on his way out to hit the links.
But the true practitioner of shoshin, and more importantly the Court of Appeal, believed otherwise. The Court turned its volume of the Probate Code back just one page and found section 6453, which says that a “natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act,” which commences in section 7600 of the Family Code. Pulling its volume of the Family Code off the shelf, the Court found section 7611, which notes that a “person is presumed to be the natural parent of a child if,” among other things, the “presumed parent receives the child into their home and openly holds out the child as their natural child.”
At this point, the probate expert is red-faced and choking, screaming into the wind. “But section 7611 has nothing to do with intestate succession!” he shouts. “It’s only been used to govern unrelated parent-child issues, like visitation rights, custody disputes, and standing to pursue wrongful death actions! In contrast, Probate Code section 6454 explicitly applies to intestate succession!” (To his credit, the probate expert is articulate even when frothing with rage.)
The Court of Appeal did not share the expert’s concerns. The Court instead felt the need to apply California Supreme Court precedent and “harmonize” the various statutes, “to give force and effect to all of their provisions . . . even where, as here, one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject.” The Court reasoned that because section 6454 did not expressly hold itself out as the exclusive means by which a stepchild may establish intestate heirship, there was nothing to bar the use of section 6453 and Family Code section 7611 as an alternate means. That is, even if a stepchild did not meet the narrow requirements for intestate heirship under section 6454, he or she could still take the roundabout way to heirship through Family Code section 7611.
Ultimately, the Court of Appeal affirmed that Zambito had standing to pursue heirship of his stepfather’s intestate estate based on the lower court’s factual findings that the stepfather had both taken Zambito into his home and held him out to the world as his own son. As a result, a stepchild’s road to intestate heirship is no longer quite as narrow, or as simple, as it was once thought to be. Where once there was only one pathway to heirship, now there are (at least) two. Score another win for shoshin.
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