Estate of Franco
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The Morenos sought a determination that Bertuccio was not an heir entitled to an intestate share of the Estate of Franco. The probate court granted them summary judgment, finding Bertuccio to be the child of a 1957 marriage between his mother Marilyn and Frank Bertuccio, under the marital presumption. Family Code section 7540(a) provides that “the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage.” Frank was identified as Bertuccio’s father on his birth certificate and paid child support for Bertuccio after he and Marilyn divorced. Marilyn purportedly told Bertuccio that Franco was his father. The court held Bertuccio was not entitled to prove Franco was his natural parent from whom he could inherit in intestate succession under Probate Code section 6453(b)(2).
The court of appeal remanded. If Bertuccio were found to be a child of the marriage of Marilyn and Frank, pursuant to the marital presumption, he would not be entitled to prove Franco was his natural parent. However, the probate court erred in applying the marital presumption without first making the requisite finding that Marilyn and Frank were cohabiting at the time of Bertuccio’s conception and birth.
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