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Who’s your father for inheritance purposes in California? Family Code section 7540(a) states that “the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage.” A child covered by this marital presumption is not an heir of a deceased third person even if genetic testing proves a parent-child relationship.

In Estate of Franco (2023) 87 Cal.App.5th 1270, the Court of Appeal clarified that, in order for the marital presumption to be applied, there must be a clear showing of cohabitation (living together) at the time of conception and birth.

Is Frank Jr. the heir of Raul?

Frank Bertuccio, Jr. was born to Marilyn Bertuccio. He spent his childhood believing that Frank Bertuccio, Sr. was his father. Frank Sr. was listed on Frank Jr.’s birth certificate as the father. Frank Sr. held out his namesake Frank Jr. as his own son.

When Frank Jr. reached adulthood, he asked his mother about his parentage. She allegedly told him that Raul Sausedo Franco was his biological father. Apparently, Marilyn and Frank Sr. had a falling out during their marriage. Marilyn dated Raul during her separation from Frank Sr., but then reunited with Frank Sr. during her pregnancy and they continued their marriage from there.

Frank Jr. developed a relationship with Raul, who told his girlfriend and neighbor that Frank Jr. was his son.

Marilyn and Frank Sr. passed away.

Raul eventually died intestate (without a will) in 2017. Upon learning of Raul’s death, Frank Jr. filed a petition to administer Raul’s estate, and he was issued letters of administration in 2018. Roberta and Cynthia Moreno (a sister and niece of Raul) then filed a motion for summary judgment on the theory that Frank Jr. was not an heir entitled to a share of Raul’s estate.

A probate judge in Santa Clara County Superior Court granted the motion, finding Frank Jr. to be the child of Marilyn and Frank Sr. under the marital presumption of Family Code section 7540(a). As such, Frank Jr. was barred from proving that Raul was his father for purposes of inheriting from Raul’s estate.

Court of Appeal clarifies a prerequisite to applying the marital presumption

The Court of Appeal affirmed the long-standing rule from Estate of Cornelious (1984) 35 Cal.3d 461 that a child of a marriage under the marital presumption is barred from proving a parent-child relationship existed with a deceased third person for purposes of inheritance by intestate succession.

The court was unmoved by Frank Jr.’s arguments that Cornelious should not be followed due to changes in the Probate Code and Family Code. While other provisions of the Probate Code and Family Code relating to parentage have been altered over the years, the Legislature has specifically chosen to retain the Family Code section 7540 marital presumption.

The Court of Appeal, however, reversed the ruling against Frank Jr. because Roberta and Cynthia did not prove that Marilyn and Frank Sr. indeed were cohabiting as husband and wife when Frank Jr. was conceived.

Roberta and Cynthia had shown (1) Marilyn and Frank Sr. were married at the time of Frank Jr.’s conception and birth; (2) Frank Sr. was listed as the father on the child’s birth certificate; and (3) Marilyn and Frank Sr. averred when they divorced that Frank Jr. was a child of the marriage. Yet these facts fell short of proving that Marilyn and Frank Sr. actually cohabited when Frank Jr. was born.

Quoting an earlier case, the Franco court observed 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.”

Franco shows that specific evidence as to the living arrangements of a married couple at the time of conception and birth is a foundational requirement for the marital presumption. Cohabitation can’t be presumed.


The marital presumption places cohabitation between spouses ahead of biological parentage when it comes to establishing inheritance, no matter what genetic testing may reveal.

Yet the passage of time may make it difficult to prove whether cohabitation (itself a squishy term) occurred at conception and birth. When faced with a dispute over intestate succession, judges and lawyers will be left to parse the many complexities of human relationships.