Estate of Franco - Case Brief

Estate of Franco - Case Brief

Case Number: A165840
Court: California Supreme Court
Date Filed: September 01, 2025

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Holding

The court held that the probate court erred in granting summary judgment on the Morenos’ motion because it applied Family Code section 7540’s marital presumption without first making a factual finding that Marilyn and Frank Sr. were cohabiting as husband and wife at the time of Frank “Bertuccio’s” conception and birth; consequently, the presumption could not be invoked, and the issue of Bertuccio’s heirship must be resolved on the merits.

Probate Battle Over Franco’s Intestate Estate: A Court of Appeal Re‑examines the Marital Presumption

When Roy Raul Hector Franco died intestate in December 2017, the question of who inherited his modest estate ignited a protracted probate dispute that now reaches the California Court of Appeal. At issue was whether Frank G. Bertuccio—who had administered Franco’s estate before his own death in 2020—could be deemed an heir under intestate succession, or whether the statutory marital presumption that once shielded him from proving parentage barred his claim. The appellate decision, issued September 1, 2025, reverses the trial court’s summary‑judgment ruling and sends the matter back for further fact‑finding, underscoring the precise procedural prerequisites for invoking Family Code section 7540.

Procedural Odyssey

The probate saga began in the Santa Clara County Superior Court. After Franco’s death, Bertuccio filed a petition for letters of administration, which the court issued on April 24, 2018. Franco’s sister, Roberta Moreno, and niece, Cynthia Moreno, promptly filed separate petitions seeking Bertuccio’s removal as administrator. Both petitions alleged that Bertuccio was not an heir because he was not Franco’s natural child. While the Morenos pursued removal, Bertuccio’s half‑sister, Tamara L. Bertuccio, was appointed special administrator of his estate after his death and substituted as a party.

On June 2, 2021, the probate court granted the Morenos’ joint motion for summary judgment. Relying on Family Code section 7540 (the “marital presumption”) and the Supreme Court’s precedent in Estate of Cornelious (1984) 35 Cal.3d 461, the trial judge concluded that because Bertuccio was a child of the marriage between his mother Marilyn and her husband Frank Sr., he could not invoke Probate Code section 6453(b)(2) to prove that Franco was his natural parent. The Morenos therefore secured a declaration that Bertuccio was not an heir.

Bertuccio appealed under Probate Code section 1303(f), arguing that the appellate court lacked jurisdiction because the order was not appealable and, more substantively, that the trial court misapplied the marital presumption. The appeal was initially assigned to the Sixth District Court of Appeal, transferred to the First District by the California Supreme Court, and fully briefed by April 2022.

Factual Matrix

The factual backdrop is a tangled web of marriages, separations, and late‑life revelations. Marilyn married Frank Sr. in December 1957. Their son, Frank G. Bertuccio, was born in 1958; Frank Sr. was listed as father on the birth certificate, and the couple co‑habited until a September 1966 separation that culminated in a divorce finalized in November 1967. During the marriage, Marilyn allegedly began a relationship with Roy Franco, who later claimed to be Bertuccio’s biological father. In the mid‑1980s, an adult Bertuccio confronted his mother, who disclosed that Franco, not Frank Sr., was his natural father. Marilyn testified that she and Frank Sr. “reunited” briefly during her pregnancy, but that she and Franco dated thereafter. Franco, unaware of the probate dispute, publicly acknowledged Bertuccio as his son.

The probate court took judicial notice of numerous documents—Franco’s death certificate, Bertuccio’s 2018 declaration, the divorce decree, child‑support orders, and affidavits—but expressly limited notice to the existence of the documents, not to the truth of their contents, citing the hearsay rule. The trial court’s summary‑judgment order rested on the assumption that Marilyn and Frank Sr. were cohabiting at the time of Bertuccio’s conception and birth, thereby triggering the marital presumption.

  1. Whether the probate court properly applied Family Code section 7540 without a factual finding of cohabitation.
  2. Whether Estate of Cornelious remains controlling after subsequent statutory amendments.
  3. Whether a child of a marriage subject to the marital presumption may rebut that presumption to establish a natural‑parent relationship with a deceased third party for intestate succession purposes.

The Court’s Reasoning

A. The Necessity of a Cohabitation Finding

The appellate court emphasized that the marital presumption is “conclusive” only when two factual predicates are satisfied: (1) the spouses were married, and (2) they were cohabiting at the time of conception and birth. The presumption is not a shortcut that bypasses the evidentiary burden; rather, the party invoking it must prove the foundational fact of cohabitation by a preponderance of the evidence (see United Savings & Loan Ass’n v. Reeder Dev. Corp. 57 Cal.App.3d 282 (1976)).

The trial court’s order merely noted that Marilyn and Frank Sr. were married when Bertuccio was conceived and born. It offered no explicit finding—let alone a factual determination—regarding whether the couple lived together as husband and wife during that period. The appellate panel rejected the notion that such a finding could be inferred from the divorce decree, child‑support orders, or the spouses’ statements in court filings, noting that those documents do not address living arrangements and, moreover, were not admitted for the truth of their contents. The court cited Steven W. v. Matthew S. 33 Cal.App.4th 1108 (1995) for the proposition that “cohabitation implies more than a stolen weekend or a sexual encounter; it is living together in a marital household, sharing day‑to‑day life.”

Because the probate court failed to satisfy the statutory prerequisite, the appellate court concluded that the marital presumption could not be applied as a matter of law. Accordingly, the summary‑judgment ruling was procedurally improper.

B. Enduring Authority of Estate of Cornelious

The Morenos argued that Cornelious—which held that a child of a marriage under the marital presumption is barred from proving a natural‑parent relationship with a deceased third person for inheritance—should be overruled by later legislative amendments to the Probate and Family Codes. The appellate court rejected that contention, pointing to a consistent legislative pattern: the 1983 amendments to the Probate Code (effective 1985) left the language governing intestate succession untouched, and the Family Code retained section 7540 and its companion provisions (e.g., § 7630(c), which expressly excludes actions to determine parentage for children covered by the marital presumption). The court noted that the Supreme Court reaffirmed Cornelious in Michelle W. v. Ronald W. 39 Cal.3d 354 (1985) and that intermediate appellate decisions—including Estate of Carter 111 Cal.App.4th 1139 (2003)—continue to cite Cornelious as good law.

The appellate panel further observed that while the Legislature has modernized many aspects of parentage law (e.g., eliminating the stigma of illegitimacy, recognizing DNA testing), it has deliberately preserved the marital presumption’s distinct status. The court quoted People v. Overstreet 42 Cal.3d 891 (1986) to underscore that legislative silence on a specific statutory scheme signals an intent to maintain the existing rule.

C. Policy Considerations

The court reiterated the policy rationale articulated in Cornelious: the marital presumption protects the integrity of the family unit and promotes stability in inheritance, preventing a “baser” impulse to claim an estate solely for financial gain. While acknowledging advances in genetic testing and evolving social norms, the appellate panel stressed that any alteration of the balance between private interests and the state’s policy must come from the Legislature, not the judiciary. The court quoted Estate of Perkins 21 Cal.2d 561 (1943): “Since the right of inheritance is not an inherent or natural right but one which exists only by statutory authority, the law of succession is entirely within the control of the Legislature.”

Disposition and Forward Path

The appellate court reversed the June 2, 2021 summary‑judgment order and remanded the case for further proceedings consistent with its opinion. The remand instructions require the probate court to make an explicit finding—based on admissible evidence—regarding whether Marilyn and Frank Sr. were cohabiting at the time of Bertuccio’s conception and birth. The parties may renew their summary‑judgment motions, but the underlying factual issue must be addressed before the marital presumption can be invoked. Costs were awarded to Tamara L. Bertuccio, the special administrator, under California Rules of Court rule 8.278.

Closing Analysis: Implications for Probate Practitioners

The Estate of Franco decision sharpens the procedural guardrails surrounding the marital presumption in probate contexts. Practitioners must now ensure that, when invoking § 7540, the record contains a clear, evidentiary foundation for the cohabitation element. Merely pointing to a marriage certificate or a birth‑certificate listing the husband as father will not suffice. Evidence may include joint lease agreements, utility bills, or contemporaneous testimony establishing a shared household.

The ruling also reaffirms the durability of Cornelious despite the Family Code’s evolution. Attorneys representing putative heirs who are children of a marriage must be prepared to confront the statutory bar that precludes them from establishing a natural‑parent relationship with a deceased decedent for intestate purposes. The only viable avenue is to demonstrate that the marital presumption does not apply—typically by proving non‑cohabitation or by showing that the marriage was a sham.

Conversely, parties seeking to exclude a claimant on the basis of the marital presumption must be ready to produce the requisite cohabitation evidence. The appellate court’s insistence on a factual finding creates an evidentiary battleground that may be more efficiently resolved through a renewed summary‑judgment motion once the record is complete, rather than through protracted trial.

Unresolved questions linger. The decision leaves open how courts should treat cases where cohabitation is ambiguous but the parties present conflicting testimony. Moreover, as DNA testing becomes routine, the tension between scientific proof of parentage and the legislative policy embodied in § 7540 may intensify, potentially prompting legislative amendment. Until such changes occur, Estate of Franco serves as a cautionary precedent: the marital presumption is a powerful tool, but only when its statutory prerequisites are meticulously satisfied.

Referenced Statutes and Doctrines

  • Probate Code §§ 6400, 6450, 6453, 1303(f) – definitions of heirs, parent‑child relationship, burden of proof for natural parentage, appealability of probate orders.
  • Family Code §§ 7540, 7611, 7630(c) – marital presumption of legitimacy, definition of “child of spouses,” exclusion of actions to determine parentage for children covered by the marital presumption.
  • Evidence Code §§ 1310, 1311 – hearsay exceptions invoked by the trial court.
  • California Rules of Court rule 8.278 – award of costs in probate appeals.

Major Cases Cited

  • Estate of Cornelious (1984) 35 Cal.3d 461 – controlling authority on the bar to proving natural parentage when the marital presumption applies.
  • Estate of Bassi (1965) 234 Cal.App.2d 529 – acknowledgment that a child may inherit from two paternal sources absent statutory bar.
  • Estate of Carter (2003) 111 Cal.App.4th 1139 – application of Cornelious to limit notice requirements for heirs conclusively presumed to be someone else’s child.
  • Estate of Burden (2007) 146 Cal.App.4th 1021 – distinction between children conceived outside marriage and those covered by the marital presumption.
  • Estate of McDill (1975) 14 Cal.3d 831 – legislative awareness of existing case law when amending statutes.
  • People v. Overstreet (1986) 42 Cal.3d 891 – principle that legislative silence indicates intent to preserve existing law.
  • Michelle W. v. Ronald W. (1985) 39 Cal.3d 354 – Supreme Court’s reaffirmation of Cornelious post‑Probate Code amendments.
  • Estate of Perkins (1943) 21 Cal.2d 561 – inheritance rights are statutory, not natural.
  • United Savings & Loan Ass’n v. Reeder Dev. Corp. (1976) 57 Cal.App.3d 282 – burden of proof for presumptions.
  • Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108 – definition of “cohabiting” for purposes of the marital presumption.
  • TRB Investments, Inc. v. Fireman’s Fund Ins. Co. (2006) 40 Cal.4th 19 – remand authority when the court’s inquiry differs from that presented by the parties.

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Last updated September 05, 2025.