Historical Treatment of Illegitimate Children Regarding Inheritance Rights
Throughout history, a child born out of wedlock was treated very harshly by the laws regarding inheritance and property rights. Such children were called bastards and were initially denied any right to inherit from their parents.The laws of intestacy denied children born to unmarried parents the same rights given to children whose parents were married. For more on the laws of intestate succession, see dying without a will. Historically, the law discriminated against such children, even though a child has no control over whether his parents marry.
In modern times, children born to unmarried parents began to receive some inheritance rights, but these rights were still much more limited than those of children born to married couples. The term illegitimate, began to be used to describe children born out of wedlock.
In the last several decades, there has been a large increase in the number of unwed couples having children. In many families, the unmarried father acknowledges the child as his own and provides for such child financially. Most state legislatures recognized the need to change probate and intestate succession laws to allow children born to unmarried parents, now called non-marital children to inherit from both parents in certain circumstances. The gap in inheritance rights between marital children and non-marital children began to narrow. For inheritance laws by state, go to state laws.
In the 1970ís, the inheritance laws applicable to non-marital children were reviewed by the U.S. Supreme Court in the case of Trimble v. Gordon, 430 U.S. 762 (1977). In Trimble, a non-marital child argued that classifications based on illegitimacy violate equal protection under the 14th Amendment to the Constitution. Other such cases followed, including most notably Lalli v. Lalli, 439 U.S. 259 (1978). Today, the laws of most states allow a non-marital child to inherit from his father, provided he can prove or establish paternity.
NonMarital Children and Inheritance Rights
A child born to unmarried parents has the right to inherit from his mother. Most U.S. states also have laws allowing nonmarital children to inherit from their maternal relatives. The childís mother and her next of kin can inherit from the child, depending, of course, on the line of succession and any other heirs that survive the child. See heirs and beneficiaries.In general, it is much more difficult for a nonmarital child to establish the right to inherit from an unmarried father. If a child is born to unmarried parents, one of the first issues regarding the right to inherit based on intestacy laws is whether paternity has been established.A child seeking the right to inherit from a parentís estate can go to court to try to establish paternity, but this is usually a very adversarial process and many individuals are too intimidated to take legal action even if they know the individual is their father. If a court finds that the putative father is the biological father of the child, the child can inherit from the fatherís estate. See
will and trust disputes.In addition to a court order declaring paternity, there are other methods by which a non-marital child can inherit from his father, depending on applicable state law. For example, if the father signed a statement acknowledging paternity prior to his death, that is usually sufficient to establish the childís right to inherit. If the father legally adopts the child, the child can inherit from the father under the laws of intestacy. Evidence of paternity can be established by genetic testing, by the fatherís open acknowledgment of being the childís parent, or other types of evidence permitted by state laws.Standards for establishing paternity vary from state to state. Some states require that paternity be established by clear and convincing evidence before a non-marital child will receive a share of the fatherís estate. For example, if a man has a relationship with a child that is characteristic of a father/child relationship, that alone is not enough to establish paternity.If paternity was not established during the fatherís lifetime, the chances of a non-marital child receiving an inheritance are even less. Despite the frequency of unmarried couples having children, probate courts and the laws governing estate administration make it both difficult and costly for a paternity case to be resolved after the putative father has died. The laws of many states have a statutory time limit by which an action for paternity must be brought or it is forever barred. While some states allow a non-marital child to make a claim against the putative father's estate, the deadline for making such a claim is often the same time frame in which creditors of the estate must file their claims. See
Creditor Claims.If paternity was proven or established in a manner that met the requirements of applicable state laws, the father can also inherit from the non-marital childís estate in intestacy. In some states, the father may not be allowed to inherit unless he treated the child as his own or supported the child.If you have questions about the laws regarding inheritance from a probate estate, consult a lawyer. This article provides a general overview of intestate succession laws applicable to children born out of wedlock and their parents, but there are many exceptions. Find an attorney.If you are the parent of a child that may be considered illegitimate and wish to leave your child an inheritance, make a will that specifically names and provides for your child. You can also make your child the beneficiary of a living trust or provide for your child by establishing another type of trust. To learn more, see children and wills and trusts.
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