Estate of David v. Snelson

• Decision Date: 17 July 1989
• Docket Number: No. 88SC362,88SC362
• Citation: 776 P.2d 813
• Parties: In re the ESTATE OF Robert W. DAVID, Deceased, Alan W. Blixt and Gerald R. Blixt, Petitioners, v. Lillian SNELSON, Respondent.
• Court: Colorado Supreme Court

Page 813

776 P.2d 813

In re the ESTATE OF Robert W. DAVID, Deceased, Alan W. Blixt

and Gerald R. Blixt, Petitioners, v. Lillian SNELSON, Respondent.

No. 88SC362.

Supreme Court of Colorado,

En Banc.

July 17, 1989.

Harold L. Davison, Aurora, for petitioners.

Hurth, Yeager & Sisk, Fred Y. Boyer, Boulder, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to resolve a conflict between two decisions of the court of appeals. In In re Estate of David, 762 P.2d 745 (Colo.App.1988), a divided panel of the court of appeals held that children adopted in 1961 were not entitled to inherit from their natural father who died intestate in 1986. In a case decided the same day, In re Estate of Bomareto, 757 P.2d 1135 (Colo.App.1988), the court of appeals held that a child adopted in 1960 was entitled to inherit from her natural father who died intestate in 1982. We affirm the judgment of the court of appeals in David. We disapprove of the reasoning of the court of appeals in Bomareto.

I.

The facts are not in dispute. Alan W. Blixt (Alan) and Gerald R. Blixt (Gerald) (collectively, the sons) are the natural children of Robert W. David (David). The sons were adopted in August 1961 by James J. Blixt, the second husband of their natural mother, in a step-parent adoption.

David died intestate in 1986. He left no spouse. In addition to his sons, he was survived by three brothers, a fourth deceased brother's children, and three sisters (collectively, the siblings). The siblings filed a petition in Adams County District Court for adjudication of intestacy and appointment of David's sister, Lillian R. Snelson, as personal representative of the estate. The sons opposed Snelson's appointment. They sought to have Alan appointed personal representative, arguing that the General Assembly in 1977 amended the 1961 inheritance law to permit adopted children to inherit from their natural parents.

The district court held that Alan had no right to be appointed personal representative of David's estate because the sons' right to inherit from David was divested when they were adopted in August 1961. The court examined the language of the sons' adoption decrees as well as the adoption laws in effect in August 1961. It concluded that the sons' adoption decrees incorporated by reference the law in effect at the time of adoption. It also noted that an inheritance statute in effect since May 1961 prohibited adopted children from inheriting from natural parents. As a result, it concluded that the effect of the August 1961 adoptions was to divest the sons of the right to inherit from their natural father.

A divided panel of the court of appeals affirmed the judgment of the district court. The majority recognized that the heirs of an estate are determined by interpreting the law of inheritance existing at the date of the intestate's death. David, 762 P.2d at 745-46 (citing Estate of Warr, 111 Colo. 85, 89, 137 P.2d 408, 410 (1943)). It interpreted the law of intestate succession in effect at David's death, section 15-11-109(1)(a), 6B C.R.S. (1987), as requiring an examination of the inheritance and adoption laws existing at the time of adoption. Although it agreed with the trial court that the 1961 adoption decrees did not expressly divest the sons of their right to inherit from David, the majority concluded from its review of the inheritance law in effect in August 1961 that the sons' right to inherit from their natural father was divested at the time of their adoption. Id. at 745.

Judge Hume dissented. He believed the August 1961 adoption decrees neither divested the sons of the right to inherit from their natural father nor incorporated by reference the inheritance statute in effect in August 1961. Id. (Hume, J., dissenting). He interpreted section 15-11-109 as unequivocally granting to adopted children the right to inherit from their natural parents. He concluded that the majority erred in holding that section 15-11-109 requires a probate court to examine the inheritance laws existing at the time of adoption. Id. at 747 (Hume, J., dissenting).

The day David was decided, a different panel unanimously concluded in In re Estate of Bomareto, 757 P.2d 1135 (Colo.App.1988), that a child adopted in 1960 could inherit from her natural father who died intestate in 1982. As in David, the court of appeals found the applicable inheritance law to be section 15-11-109(1)(a). The court apparently interpreted section 15-11-109(1)(a) as permitting an examination of the law in effect at the time of adoption only if incorporated by reference into the final decree of adoption. ¹ It examined the 1960 adoption decree and found that the decree terminated the adopted child's obligations to her natural parents but not her right to inherit from her natural parents. Id. at 1137. The court of appeals held that the 1960 adoption decree incorporated the language of section 4-1-11, an adoption statute, but not other laws in effect at the time. It concluded that section 4-1-11 did not state that the right to inherit from a natural parent is divested upon adoption and reasoned that the right to inherit is not a "parental obligation" within the meaning of section 4-1-11 but "a legal right which accrues automatically to the child upon the decedent's death." Id. Because the 1960 adoption decree did not terminate the child's right to inherit from her natural parents, reasoned the court of appeals, the adopted child remained the heir of her natural father and took his estate by intestate succession in 1982.

Like the David court, the Bomareto court attempted to distinguish the two cases, but did so on different grounds. The David court concluded that the distinguishing factor was the inheritance law in effect at the time of adoption: the 1960 inheritance law applicable in Bomareto permitted adopted children to inherit from their natural parents while the 1961 inheritance law applicable in David prohibited adopted children from inheriting from their natural parents. David, op. at 814. The Bomareto court concluded that the distinguishing factor was the presence or absence of an adoption statute incorporated into the adoption decree: the adoption decree in Bomareto incorporated the language of section 4-1-11 while the adoption decree in David did not. Bomareto, 757 P.2d at 1137.

Certiorari review was sought in David but not in Bomareto.

II.

Whether children may inherit by intestate succession from natural parents whose parental rights and obligations were terminated by final decree of adoption is a question of first impression in Colorado.

The right of adopted children to inherit is determined by the inheritance laws in effect when the intestate died. Estate of Warr, 111 Colo. 85, 89, 137 P.2d 408, 410 (1943). The inheritance law in effect when David died was section 15-11-109(1)(a). Section 15-11-109(1)(a) provides:

(1) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(a) An adopted person is the child of an adopting parent and of the adopted person's natural parents insofar as the rights of all persons to inherit from or through the adopted person and the right of the adopted person to inherit from or through any person are concerned, except to the extent that inheritance rights have been divested by a final order of relinquishment, a final decree of adoption, or an order terminating the parent-child relationship under the laws of this state or of any other jurisdiction.

6B C.R.S. (1987) (emphasis added). Section 15-11-109(1)(a) therefore creates a general rule and an exception. The general rule is that adopted children may inherit from or through their natural parents as well as their adopted parents. The exception to this rule occurs when the right to inherit from natural parents is divested. Whether the sons are entitled to inherit from David therefore depends on whether their right to inherit was divested when they were adopted in August 1961. This in turn depends on the meaning of the statutory phrase "except to the extent that inheritance rights have been divested by ... a final decree of adoption ... under the laws of this state or of any other jurisdiction." ²

Both parties argue for different reasons that the statutory phrase "except to the extent that inheritance rights have been divested by ... a final decree of adoption" means that the law in effect at the time of adoption has no bearing on whether adopted children may inherit from their natural parents. The sons argue that this statutory phrase means that a probate court in determining an intestate's heirs may consider only the inheritance laws in effect at the time of the intestate's death and the language of the adoption decree, but may not consider other laws in effect at the time of the adoption unless the adoption decree incorporates these laws by reference.

Snelson argues that this statutory phrase means that a probate court in determining an intestate's heirs after July 1977, when section 15-11-109(1)(a) became effective, must conclude that adopted children are divested of the right to inherit from their natural parents regardless of the law in effect at the time of adoption. She bases this conclusion on a reading of section 15-11-109(1)(a) of the probate code in conjunction with section 19-3-608(1), 8B C.R.S. (1988 Supp.), and section 19-5-104(4), 8B C.R.S. (1988 Supp.), of the children's code. She contends that these statutes read in pari materia demonstrate a legislative intent to divest all adopted children of the right to inherit from a natural parent regardless of the law in effect at the time of adoption.

We find neither argument persuasive and hold that the right of adopted children to inherit from their natural parents depends on the adoption and inheritance laws in effect at the time of adoption.

A.

We agree with the trial court and the court of...