I dissent. The majority argue that since the cause of action for wrongful death is wholly statutory in origin, this court cannot redefine the term “heirs” as used in section 377 to include dependent stepchildren such as Elizabeth. They contend that Evans v. Shanklin, 16 Cal. App.2d 358 [60 P.2d 554], recognizes a clear legislative intent to confine such actions to those persons expressly specified by the statute. They point to the fact that the Legislature waited 32 years to correct the injustice pointed out in our holding in Evans, and that “In the exercise of a judicial function, *127we should not assume the prerogative of making changes in a statute when the Legislature, by strong implication, has elected not to do so.” (Ante, p. 121.)
As I shall indicate, this court has the responsibility to construe legislation in such a manner as to save its constitutionality, and that an interpretation of section 377 which would exclude such persons as Elizabeth should require us to strike down the statute as a denial of equal protection of the law; whereas to include her within the term “heirs” would not, and neither would it be contrary to legislative intent nor policy.
Legislative silence after a judicial decision construing a statute should give rise, at most, to a slim inference of acquiescence or passive approval. (People v. Daniels, 71 Cal.2d 1119, 1127-1128 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677].) Often, all that may be said of such silence is that, for whatever reasons, the Legislature chose not to act. (See Cleveland v. United States, 329 U.S. 14 [91 L.Ed. 12, 67 S.Ct. 13] [concurring opn. 329 U.S. 21 (91 L.Ed. 18)].) And when the Legislature finally does act, the new or amended statute may reflect nothing more than the dimensions of the specific problem brought to its attention, “inviting the conclusion that the legislative policy is equally applicable to other situations in which the mischief is identical.” (Moragne v. States Marine Lines, 398 U.S. 375, 392 [26 L.Ed.2d 339, 352, 90 S.Ct. 1772].)
This observation is applicable here. In Evans, we held that “heirs” could not be extended to include dependent parents. In 1968, however, the Legislature amended section 377 to expressly include such parents within the class authorized to bring a wrongful death action. In my view, the amendment illustrates a legislative policy to permit such actions by all persons who have incurred damages substantially identical to those incurred by decedent’s heirs at law. Contrary to the majority, I cannot place any significance upon the fact that the Legislature failed to expressly include dependent stepchildren in section 377 — clearly this particular injustice had not been brought to its attention when it drafted the amendment. Thus, I would have no difficulty holding that the inclusion of dependent children such as Elizabeth promotes, rather than frustrates, existing legislative policy to allow a wrongful death recovery by the heirs and relatives of the decedent.
But, as I indicated above, even if the Legislature had intended to foreclose such persons as Elizabeth from bringing such actions, she should nonetheless prevail by reason of the application of equal protection principles inherent in the Fourteenth Amendment to the United States Constitution. These principles require that the distinctions drawn by a statute granting *128an economic benefit to one class while denying it to another must at least bear some rational relationship to a conceivable legitimate state purpose. (Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172-173 [31 L.Ed. 2d 768, 777-778, 92 S.Ct. 1400]; Serrano v. Priest, 5 Cal.3d 584, 597 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187]; In re Antazo, 3 Cal.3d 100, 110, 111 [89 Cal.Rptr. 255, 473 P.2d 999].) In addition, a statute which appears valid on its face may have a discriminatory effect in its application thereby denying equal protection of the law. (Yick Wo v. Hopkins, 118 U.S. 356, 373 [30 L.Ed. 220, 227, 6 S.Ct. 1064]; Brock v. Superior Court, 12 Cal.2d 605, 610 [86 P.2d 805].)
The purpose of section 377 is to compensate the enumerated class of persons “for the pecuniary loss suffered by them by reason of the loss of their relatives by death.” (Kunakoff v. Woods, 166 Cal.App.2d 59, 62 [332 P.2d 773]; Estate of Bright v. Western Air Lines, 104 Cal.App.2d 827, 829 [232 P.2d 523].) Thus, “the word ‘heirs’ in'the statute is intended to limit the right of recovery to a class of persons who, because of their relation to the deceased, are supposed to be injured by her death.” (Redfield v. Oakland C.S. Ry. Co., 110 Cal. 277, 290 [42 P. 822, 1063].) Since such a limitation narrows liability in a rational way, as well as eliminating difficult proof problems which might otherwise arise, section 377 on its face meets the demands of the equal protection clause. However, even though the classification drawn by the word “heirs” has a rational basis in general, that statute cannot have the effect (see, e.g., Yick Wo v. Hopkins, supra, 118 U.S. 356) of excluding persons, such as Elizabeth, who suffer an injury from decedent’s death that is both emotionally and economically indistinguishable from that suffered by a natural child. I can find no rational basis for a distinction which is based solely upon the technical definition of the word “heirs.”
In Levy v. Louisiana, 391 U.S. 68 [20 L.Ed.2d 436, 88 S.Ct. 1509], the United States Supreme Court held invalid under the equal protection clause a Louisiana statute which had been interpreted as barring an action by illegitimate children for the wrongful death of their mother. The court pointed out (at p. 72 [20 L.Ed.2d at p. 439]): “Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.” (Italics added.) In a footnote attached to the *129above quoted statement, the court noted that “Under Louisiana law both parents are under a duty to support their illegitimate children.”1
Later, in Weber v. Aetna Casualty & Surety Co., supra, 406 U.S. 164, the Supreme Court held that Louisiana’s denial of equal recovery rights to unacknowledged illegitimate children under the state’s workmen’s compensation laws was also a denial of equal protection. The court again recognized that the dependency of the child is the same regardless of the circumstances of its birth, stating (pp. 169-170 [31 L.Ed.2d p. 775]): “Here, as in Levy, there is impermissible discrimination. An unacknowledged illegitimate child may suffer as much from the loss of a parent as a child bom within wedlock or an illegitimate later acknowledged. So far as this record shows, the dependency and natural affinity of the unacknowledged illegitimate child for her father were as great as those of the four legitimate children whom Louisiana law has allowed to recover. [Fn. omitted.] The legitimate children and the illegitimate child all lived in the home of the deceased and were equally dependent upon him for maintenance and support. ...” (Italics added.)
A similar result was reached in Arizmendi v. System Leasing Corp., 15 Cal.App.3d 730 [93 Cal.Rptr. 411], where the Court of Appeal held that a distinction under the California statutes, preventing an unacknowledged illegitimate child from bringing an action under Code of Civil Procedure section 377 for the wrongful death of his father, constituted a denial of equal protection. (See Prob. Code, § 255.) The court stated in Arizmendi (p. 736) that, “The law of this state recognizes and creates an obligation on the part of the natural father of a minor child, whether the child is legitimate or illegitimate, to provide the necessities of life for such child. [Citation.] The illegitimate minor child, therefore, is entitled as a matter of law to look for, and receive support from its natural father at least for the necessities of life. The deprivation of this right by the tortious act of a third person resulting in the death of the natural father is just as real and as devastating to an illegitimate minor child as it is to a legitimate minor child. ...” •
*130In the instant case, although Elizabeth is not the natural child of the decedent, she was no less dependent upon him than were the children in Levy, Weber and Arizmendi, supra, dependent upon their respective parents. Elizabeth relied upon the decedent for her support and was cared for and nurtured by him. Indeed under the facts as stated above, Elizabeth was the child of the decedent in every sense but biological, and was even led to believe that she was decedent’s biological child. In addition, under the rule stated in Clevenger v. Clevenger, 189 Cal.App.2d 658, 670-675 [11 Cal.Rptr. 707, 90 A.L.R.2d 569], the relationship between Elizabeth and the decedent was such that the decedent would have been estopped, had he lived, from denying a continuing obligation to support her.
In Clevenger, the court held that under a limited set of circumstances a child’s stepfather would not be allowed to deny that he was the child’s father to avoid paying child support. The court stated (p. 671) that, “If the facts should show . . . that the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child,' that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts, we would have the foundation of the elements of estoppel.” The court held that since the stepfather had publicly acknowledged and treated the child as his own, and representated this fact to the child for such a period as to make it impractical for the child to locate and seek support from its natural father, the stepfather would be estopped from denying a continuing obligation to support the child as if it were his own.2
The stipulated facts in the instant case likewise would have established an estoppel against decedent, preventing him from denying parenthood or avoiding an obligation to support Elizabeth. The relationship of father and *131child continued for a period of six years while decedent represented to Elizabeth that he was her natural father. Elizabeth relied upon these representations and held a continuing belief that decedent was in fact her natural father. Inasmuch as this reliance foreclosed her from seeking support from her natural father, it was detrimental to her. (Cf. Clevenger v. Clevenger, supra, 189 Cal.App.2d 658, 671.) Thus, at the time of his death, decedent owed to Elizabeth an obligation to support her to the same extent as if she were his natural child. This right to support was terminated by the allegedly tortious acts of defendants, a wrong for which Elizabeth must be provided a remedy. (Civ. Code, § 3523.)
The injury suffered by Elizabeth was identical in every respect to the injury suffered by her half-sister who is allowed to recover under section 377. Under these circumstances, it would be wholly inequitable to deny recovery to Elizabeth. Furthermore, prior to decedent’s death, Elizabeth’s physical and economic dependency upon him, as well as her economic expectations, were indistinguishable from those of the children involved in Levy, Weber, and Arizmendi, supra, whose rights were held to be protected by the equal protection clause. Thus, I find no rational reason for drawing a distinction between dependent stepchildren in Elizabeth’s position and other dependent children, at least for the purpose of bringing an action for wrongful death. As in Levy, Weber, and Arizmendi, supra, to deny the child’s right to recover for her loss would be an impermissible discrimination under the equal protection clause.3
It has long been the rule that if “the terms of a statute are by fair and reasonable interpretation capable of a'meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.” (County of Los Angeles v. Legg, 5 Cal.2d 349, 353 [55 P.2d 206]; San Francisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 948 [92 Cal.Rptr. 309, 479 P.2d 669].) By interpreting section 377 to allow recovery by stepchildren such as Elizabeth, we could save the statute’s constitutional validity while carrying out the statute’s purpose of limiting the class of persons entitled to recover for the wrongful death of a human being. I would hold, therefore, that the word “heirs” as used in Code of Civil Procedure section 377 includes within its *132meaning a dependent stepchild such as Elizabeth under the circumstances of this case.4
I would therefore reverse the judgment of the trial court dismissing Elizabeth’s wrongful death action and remand the cause to the trial court with orders to deny defendant’s motion for summary judgment and take such further proceedings as are necessary for the resolution of the action.
Tobriner, J., and Mosk, J., concurred.Appellant’s petition for a rehearing was denied August 28, 1974. Tobriner, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.
The majority relies upon Labine v. Vincent, 401 U.S. 532 [28 L.Ed.2d 288, 91 S.Ct. 1017], to distinguish Levy. They argue that because decedent could have adopted Elizabeth there was no insurmountable barrier for her to overcome. The implication to be drawn from this statement is that any discrimination short of creating an “insurmountable barrier” is permissible. However, numerous cases have established the general proposition that discriminations which only disadvantages a class of persons are as subject to the command of the Fourteenth Amendment as discriminations which are in some sense more absolute. (E.g., Dandridge v. Williams, 397 U.S. 471 [25 L.Ed.2d 491, 90 S.Ct. 1153]; Hunter v. Erickson, 393 U.S. 385 [21 L.Ed.2d 616, 89 S.Ct. 557]; Douglas v. California, 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814]; Smith v. Cahoon, 283 U.S. 553 [75 L.Ed. 1264, 51 S.Ct. 582].)
I note the reasonable limitations placed upon this doctrine of estoppel by the court in Clevenger where it states (pp. 674-675): “We have been careful, however, to restrict the indicated liability of the putative father to the case in which he represents to the child expressly or by implication that he is the child’s natural father and the child believes him to be the natural father. We do not suggest that the husband who supports his wife’s child by another man necessarily incurs liability for the support of that child. Here, if the facts so show, we predicate an estoppel upon the child’s acceptance of the representation of the putative father that he is the natural father. The analogous situation in which the putative husband may be charged with a putative marriage rests upon the reputed wife’s ‘belief in the existence of a valid marriage.’ (Vallera v. Vallera (1943), 21 Cal.2d 681, 684 .. . .)
“We emphasize a second limitation on the husband’s liability: the representation must be of such long continuance that it frustrates the realistic opportunity of discovering the natural father and truly establishes the paternal relationship of the putative father and the child. We do not discuss here a relationship of some passing days; this relationship continued over the span of a decade.”
The discrimination against Elizabeth is even more telling when section 377 is viewed as of its 1968 amendment. That amendment, as previously discussed, allowed dependent parents a cause of action for wrongful death. Clearly the harm suffered by a dependent stepchild is as great or greater than that of a dependent parent. There is no rational reason for drawing the distinction between the two.
This holding would not replace the word “heirs” in section 377 with a class of persons injured by the decedent’s death nor would it mean that dependency is the relationship that gives rise to the action for wrongful death. I merely conclude that where two stepsisters suffer an identical injury because of their relationship to the deceased, there is no rational distinction that could be drawn allowing recovery by one but not by the other. Thus, to deny recovery to Elizabeth, but not to her stepsister, solely upon a technical definition of the word “heirs” contravenes the mandate of the equal protection clause.