Trusts and Estates

Dying Without a Will: Nonmarital Children and Inheritance

According to the rules of intestate succession, children born within a marriage have been treated much better than those born outside wedlock. Reasons for this may include difficulty in proving parentage and prevailing social values of the time and place.

Leaving Property to a Non-marital Child

Courts have been known to interpret wills as excluding a child born out of wedlock if the will didn't specifically identify the child as offspring. Recently, however, more states have concluded that treating a child of unmarried parents differently than children born while married punishes the innocent child.

If a will or trust is not clear as to whether to exclude or include a child, the state's rules of intestate succession may be applied. Generally, the trend is toward interpreting a will or trust to include all children unless it's clear that the parent intended some other outcome.

Proof of Parentage

Generally, no proof of maternity is required to establish a mother-child relationship, however, proof of paternity is usually required. Reliable genetic testing is usually the way to prove paternity to require a father to pay child support.

Proof of Paternity

As mentioned, using genetic testing is one way to obtain proof about a father/child biological relationship existing. That's only part of the puzzle, though.

In addition, factors to prove paternity for the purposes of allowing the child to inherit from the father include:

  • Did the parents have a marriage ceremony, either before or after the birth of the child?
  • If the marriage didn't occur, did the father participate in the child's life as though the marriage was valid?
  • Did the couple live together for 10 months prior to the birth of the child?
  • Did the father support the child?
  • Did the father claim the child on a tax return?
  • Did the father allow the child to use his last name?
  • Did the father openly treat the child as his own?

Questions For Your Attorney

  • My child's father (or mother) just died and we were never married. Will my child have trouble claiming his inheritance?
  • My ex just died. We were never married (or in a civil union) and my ex is not the biological parent of my child, but treated my child like his/her kid. Is my kid entitled to any inheritance?
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