Opinion
No. 74-003
Decided September 24, 1974. Rehearing denied October 22, 1974. Certiorari granted January 6, 1975.
Probate court classified children of decedent's former husband as being, for inheritance tax purposes, decedent's stepchildren. Department of Revenue appealed.
Reversed
1. PARENT AND CHILD — Stepparent-Stepchild Relationship — Based on Affinity — Divorce — Relationship Terminated. The stepparent-stepchild relationship is one based on affinity, i.e., the tie between one spouse and the blood relations of the other spouse; thus, having been created by virtue of a marriage, the stepchild relationship must itself terminate when that marriage has ended by divorce.
2. TAXATION — Inheritance Tax Purposes — Legatees — Children — Decedent's Ex-Husband — Not — "Class A" Beneficiaries. In situation where decedent died leaving bequests to both of her "stepchildren," and where those legatees were children of decedent's ex-husband and had not been adopted by the decedent, the probate court erred in determining that such legatees were entitled to be categorized as "Class A" beneficiaries for inheritance tax purposes, rather than "Class D" beneficiaries.
Appeal from the Probate Court in and for the City and County of Denver, Honorable David Brofman, Judge.
John P. Moore, Attorney General, Dante L. Zarlengo, Assistant Attorney General, for plaintiff-appellant.
Belmore T. Martin, for defendants-appellees.
This case involves an interpretation of the meaning of the word "stepchild" as used in C.R.S. 1963, 138-3-14(2), an inheritance tax statute. The statute categorizes stepchildren as "Class A" beneficiaries. The trial court interpreted the word "stepchild" to include former stepchildren. We reverse.
The decedent and one Mose Iacino were married in 1937. Mose Iacino had two children by a previous marriage. These children were not adopted by the decedent. After 30 years of marriage, the decedent and Mose Iacino were divorced. Thereafter, the decedent died leaving bequests to both of her "stepchildren." The Department of Revenue classified the children as "Class D" beneficiaries under C.R.S. 1963, 138-3-14(2). The estate disagrees and contends that these beneficiaries should have been classified as stepchildren, and their bequests taxes at the lower "Class A" rates.
[1] The stepparent-stepchild relationship is one based on affinity. "Affinity" has been defined as "the tie between one spouse and the blood relations of the other spouse." Annot., 26 A.L.R.2d 271. A divorce action is an in rem proceeding which terminates the marriage and all attendant relationships. See H. Clark, Law of Domestic Relations § 11.3 at 311. Having been created by virtue of the marriage, the stepchild relationship must itself terminate when the marriage has ended by divorce.
The same issue raised by this appeal was decided in Hamilton v. Calvert, 235 S.W.2d 453 (Tex.Civ.App.). There the court held that divorce terminated a stepparent-stepchild relationship.
The estate urges that applying the Hamilton decision would produce an injustice to these legatees, and asserts that there is a contrary line of authority in the state of Washington, citing In re Estate of Ehler, 53 Wash. 2d 679, 335 P.2d 823. The Ehler decision is in direct conflict with Hamilton. However, we do not find Ehler to be persuasive since it establishes a continuing stepparent-stepchild relationship for all situations, regardless of what the actual filial ties might be.
In applying C.R.S. 1963, 138-3-14 (2) to the instant case, we find no need to expand the apparent meaning of "stepchild." Although it is a general rule in Colorado that the inheritance tax statute must be liberally construed in favor of the taxpayer, such "liberal construction does not permit a court to rewrite the statute and is only used when the wording of the statute creates a doubt." Denver U.S. Bank v. People, 29 Colo. App. 93, 480 P.2d 849. See also In re Marshall's Estate, 42 Cal. App. 683, 184 P. 43.
[2] We hold, therefore, that the court erred in determining that these legatees were "Class A" beneficiaries and not "Class D" beneficiaries.
Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.
JUDGE PIERCE and JUDGE BERMAN concur.